                                                                           FILED 

                                                                       JANUARY 12, 2016 

                                                                   In the Office of the Clerk of Court 

                                                                  WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


IN THE MATTER OF THE CUSTODY                    )
OF:                                             )         No. 32597-1-111
                                                )
K.R.H.,                                         )
                                                )
DEBRA ELAINE CLAWSON,                           )
                                                )         UNPUBLISHED OPINION
                       Respondent,              )
                                                )
       and                                      )
                                                )
JANELLE MARIE HUNTER, WILLIAM                   )
F.MAR8(,                                        )
                                                )
                       Petitioners.             )

       FEARING, J. -    William Marx appeals the trial court's denial of his motion to

vacate a default nonparental custody decree entered against him prior to establishment of

his paternity. The decree granted custody of Marx's daughter, Katerina, to the daughter's

maternal grandmother, Debra Clawson. Katerina is a fictitious name. Marx also appeals

the trial court's denial of his petition for a major modification of the default residential

schedule. We affirm the trial court's refusal to vacate the default decree. We, however,
No. 32597-I-III
In re Custody ofKR.H


reverse the trial court's denial of Marx's petition for a major modification in the child's

residential schedule. We hold that the trial court failed to employ the correct standard

when denying the petition for a major modification. Because of Marx's constitutional

right to the care of his daughter, Debra Clawson, to retain custody of Katerina, needed to

show Marx to be an unfit parent or that Katerina's placement with Marx would result in

actual detriment to Katerina's growth and development. We remand for further

proceedings.

                                          FACTS

       Janelle Hunter and appellant William Marx generated a child together in 2010,

although Marx disclaims knowledge of his fatherhood until 2013. In December 2009 and

January 2010, Janelle Hunter and William Marx enjoyed a brief corporeal affair, despite

Hunter's marriage to another. Marx believed Hunter then engaged in sexual relations

with two other men not her husband. Marx claims he ended the brief relationship with

Hunter because of her sexual interactions with others, her possible drug use, and

intervention by police. He does not explain the police involvement.

       In a declaration, respondent Debra Clawson, mother of Janelle Hunter, averred

that Hunter, with William Marx present, announced her pregnancy during Christmas

dinner 2009. Clawson was present during the dinner. Marx denies that Hunter

publicized any pregnancy at the Christmas dinner. Marx reasonably notes that Hunter

gave birth to Katerina after only thirty-five weeks of gestation and more than thirty-five

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In re Custody ofK.R.H


weeks passed between Christmas and the birth, on August 25. Marx also questions

whether Hunter would announce to her family that a man she met a week before already

impregnated her.

       On August 25, 2010, Janelle Hunter gave birth to Katerina. Hunter consumed

methamphetamine while pregnant, and, as a result, Child Protective Services (CPS)

removed Katerina from Hunter's side while the two convalesced in the hospital.

       In an order denying William Marx's motion for reconsideration in this nonparental

custody suit, the trial court entered findings of fact that mentioned events during the

dependency action. The findings state that Janelle Hunter identified William Marx as the

father. The findings do not disclose when or under what setting Hunter identified Marx

as the father. Neither party knows if the birth certificate listed Marx as the father.

       In a declaration, Debra Clawson testified that someone telephoned William Marx

the day after Katerina's birth and informed him of the birth. According to Clawson,

Marx summarily ended the call. Clawson did not identify the purported caller to Marx

nor did she aver that she overheard the conversation. The declaration also does not

indicate whether the caller informed Marx that he was the father of the child.

       On August 31, 2010, the State of Washington filed a dependency action for

Katerina. The record on appeal does not include the pleadings from the dependency

action. In the order denying William Marx's motion for reconsideration in this

nonparental custody suit, the trial court entered a finding of fact that the dependency

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In re Custody ofK.R.H


petition listed William Marx as Katerina's biological father.

       On September 3, 2010, the State filed a declaration indicating that it left notice of

the dependency action at Marx's last known address, 223 E. LaCrosse, Spokane. The

State gained the address through a search of Qwest telephone records and the Internet.

The findings in this nonparental custody action mentioned that the State "paged" Marx

for a dependency hearing on October 14, 2010, and that Marx did not respond to the

page. We do not know the nature of the page, whether Marx had the capability of

receiving a page, and whether Marx received the page.

       In a declaration in support of his motion to vacate the nonparental custody order,

William Marx did not disclose whether he received notice of the dependency action or if

he received a page for a hearing. In the declaration, Marx agreed he learned in early

2010 of Janelle Hunter's pregnancy. He averred that, at the time of the birth of the child,

he did not believe he was the father because the child was born eight months after his

first rendezvous with Hunter and because Hunter enjoyed relations with other men. Marx

testified that Hunter never informed him that he was the father of Katerina.

       On September 10, 2010, and after the filing of the dependency action, the State of

Washington placed the two-week-old Katerina with her maternal grandmother, Debra

Clawson. On November 10,2010, the trial court entered an order of dependency for

Katerina, kept the child in the care of Clawson, and granted Clawson leave to obtain a

decree of nonparental custody. Our record does not contain a copy of the dependency

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No. 32597-I-III
In re Custody ofK.R.H.


order. We do not know if the order of dependency included findings declaring William

Marx unfit to parent. William Marx claims the State dismissed the dependency action

because of lack of service on him. He claims the State filed a pleading stating he had not

been served. We do not have a copy of the pleading in order to confirm Marx's

contention.

       On January 10, 20 11, Debra Clawson initiated this nonparental custody

proceeding, against her daughter Janelle Hunter and William Marx, for the custody of

Katerina. Katerina was then three-months old. Marx had not yet been legally established

as Katerina's parent. In her petition, Clawson identified Marx as "possible father to"

Katerina. Clerk's Papers (CP) at 4. Clawson alleged that Marx "has never had any

contact with [Katerina] or showed any interest in her." CP at 10. Clawson petitioned for

limited visitation for Marx due to his alleged "[w ]illful abandonment that continues for

an extended period of time or substantial refusal to perform parenting functions." CP at

9. Under a section of the nonparental custody petition titled "Best Interest of the

Children," Clawson wrote: "I think being placed with family is better than being placed

in a foster home." CP at 10. Clawson did not sign the petition under the penalty of

perjury, despite the petition form requiring the signature.

       In her proposed residential schedule filed with the nonparental custody petition,

Debra Clawson proposed restricting William Marx's contact with Katerina to supervised

visitations with. twenty-four hours advance notice. Clawson justified the restriction with

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No. 32597-1-III
In re Custody ofK.R.H.


Marx's willful abandonment of his daughter and his conviction of assault of a child in the

third degree. In a declaration later filed, Marx admitted the State charged him with

assault in 2001. Marx averred that he resolved the charge, but does not disclose the

nature of the resolution or whether the State convicted him of the crime. He states that

someone permitted him to see his other children on the same day as the resolution of the

charge. Our appellate record does not include Marx's criminal background.

       On January 10,2011, Debra Clawson's son, Corey Clawson, appeared at William

Marx's front door and handed Marx papers. In a March 2014 declaration, Marx avowed

that Clawson delivered him "a couple" faded handwritten papers with portions whited

out. CP at 58. Marx claimed he found no summons in the papers, although he does not

explain why three years later he would remember the absence of a summons and why he

would have known the significance of a summons in 2011. In his declaration, Marx

further averred that he saw no case number on the papers. Marx insisted he was unaware

of a need to respond to the papers or that the papers alleged him to be Katerina's father.

He does not indicate ifhe read any of the papers, whether he recalls the content of what

he read, and how and when he disposed ofthe papers.

      Kathryn Fenley, William Marx's girlfriend, signed a declaration in April 2014. In

the declaration, Fenley averred that she observed Corey Clawson serve Marx with

documents in January 2011. Fenley reviewed the documents and described them as a

small stack of papers "whited out and badly faded in places" and lacking the appearance

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No. 32597-1-II1
In re Custody ofK.R.H


of "proper documents." CP at 127. According to Fenley, the paperwork lacked any

summons. On January 11,2011, Corey Clawson filed a return of service, in which he

declared he served William Marx at 223 E. LaCrosse, Spokane, at 8:04 p.m., on January

10,2011, with a copy of the summons, petition, proposed residential schedule, notice of

adequate cause hearing, and a response to petition form.

       Neither Janelle Hunter nor William Marx responded to Debra Clawson's

nonparental custody petition. On February 3, 2011, a court commissioner granted

Clawson an order of default, order on nonparental custody, order re: adequate cause,

findings of fact and conclusions of law, and nonparental custody decree. One finding

declared that neither parent is a "suitable custodian" for Katerina because "both parents

failed to meet minimal standards of care for [the child] and failed to complete services."

CP at 30. Another finding averred that the child had been "removed from parental care

due to findings of neglect and/or abuse by CPS." CP at 30. A later finding stated that "it

is in the best interest of [Katerina] to be placed in the custody of petitioner [Debra

Clawson]." CP at 30. No finding expressly declared William Marx to be an unfit parent

or averred that placement of Katerina with Marx would result in actual detriment to the

child's growth and development.

       The visitation section of the February 2011 custody decree read that the residential

schedule will establish Marx's visitation rights. Nevertheless, the commissioner signed

no residential schedule.

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I

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     No. 32597-1-111
     In re Custody ofK.R.H


             We do not know if Debra Clawson or another party sent a copy of the nonparental

     custody default order and decree to William Marx. On May 25, 2011, the State dismissed

     the dependency proceeding for Katerina.

             In July 2013, either the State of Washington or Debra Clawson initiated a paternity

     suit against William Marx in order to collect child support from Marx. Our appellate

     record contains none of the suit's pleadings. On July 18,2013, Marx submitted to

     genetic testing to determine whether he was Katerina's father. On October 9,2013, Marx

     sent Debra Clawson a certified letter requesting visitation with Katerina. Clawson never

     retrieved the letter. On October 10,2013, the State confirmed paternity of Marx through

     the testing. Marx does not explain why he sent his letter requesting visitation one day

     before confirmation of his fatherhood, ifhe did not believe himself to be the father. On

     October 30,2013, Marx sent Clawson another certified-letter requesting visitation. On

     November 1,2013, Clawson collected the letter and contacted Marx to schedule

     visitation.

            On November 2,2013, William Marx first visited three-year-old Katerina at Debra

     Clawson's home. Marx visited from 1:00 to 3:45 p.m. At the conclusion of the visit,

     Clawson invited Marx, his son Jaidin, Marx's girlfriend Katherine Fenley, and Fenley's

     daughter Kessy to attend a hockey game that evening with Katerina and Katerina's half-

     brother, five-year-old Kayden. Marx accepted the invitation. Marx visited Katerina on

     November 4, 11, and 14, with Clawson present for all visits. Clawson cancelled a few

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No. 32597-1-II1
In re Custody ofK.R.H.


scheduled visits in November while Katerina and Kayden were sick. On November 23

and 29,2013, Marx enjoyed two afternoon unsupervised visits with his daughter.

       Katerina adjusted well to visits with William Marx until December 17,2013, when

she first resisted spending time with her father. Debra Clawson deemed Katerina

"crabby" that day. CP at 90. The young girl happily visited Marx on December 18. At

Clawson's offer, Katerina stayed overnight with Marx on December 25,26, and 31.

       On January 2, 2014, Debra Clawson began a new job that demanded placing

Katerina in preschool from 8:00 a.m. to 5:00 p.m. every day. Because ofthe new

schedule, Clawson ended weekday visits between Marx and Katerina. Katerina stayed

overnight with Marx on January 4 and 11, and the weekends of January 18 and 25. On

January 24, Katerina's uncle, Corey Clawson, and Corey's girlfriend, Danielle Bergeson,

left Katerina at Marx's home. CP 105. Bergeson signed an affidavit in which she

maintained that Katerina cried in the car on the way to Marx's residence on January 24

and did not want to remain with her father. Marx maintained that Katerina did not cry on

January 24, but Katerina cried herself to sleep on the first night of the weekend stay and

awakened in good spirits the following morning. On January 31, Corey Clawson

dropped Katerina at Marx's home for the weekend. CP at 63. Katerina cried herself to

sleep the first night, but remained happy the rest of the weekend.

      Conflict arose between Debra Clawson and William Marx in early February 2014.

According to Marx, Clawson told him she co-slept with Katerina and that Katerina

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No. 32597-I-III
In re Custody ofK.R.H.


should not nap. Marx disagreed with Clawson's sleeping practices. Marx objected to the

amount of sweets and junk food Clawson permitted Katerina. Clawson, meanwhile,

claimed Marx gave the young girl a bubble bath after she told Marx that a physician

advised that bubble baths caused Katerina yeast infections. Marx denied receiving this

advice. Marx worried that a flooded basement in Clawson's home necessitated Katerina

wearing tubes in her ears, while Clawson insisted ear infections ran in her family.

Clawson and Marx both accused each other of manipulating Katerina.

       On February 6,2014, Katerina underwent the placement of new tubes in her ears.

After the procedure, William Marx texted Debra Clawson to inquire ofthe success of the

process. Clawson responded that Katerina suffered a fever and Katerina would not visit

with Marx the coming weekend. Marx understood the procedure to be minor and

interpreted Clawson's denial of visitation as an arbitrary interference with visits. Marx

inquired why Katerina could not spend the weekend and Clawson replied that someone

recommended that she allow only supervised visitation as afforded in the February 2011

residential plan. Remember that the court commissioner signed no residential placement

plan or schedule.

      On February 6,2014, Debra Clawson offered William Marx a supervised visit at

her house the following Friday or Saturday. Marx and Clawson then exchanged forceful

text messages. Marx wrote that the law prohibited a foster parent from sleeping with a

foster child and he demanded that Clawson immediately end the nighttime habit.

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No. 32597-1-III
In re Custody ofKR.H.


Clawson directed Marx not to contact her again.

       The heated texts ended. On February 19,2014, Debra Clawson proposed to

William Marx a supervised visit at McDonald's on February 22. Marx accepted and

appeared at the restaurant at the appointed time with his son and girlfriend. The visit

ended soon because of Katerina's unwillingness to engage with Marx. Clawson

maintained that Katerina's shyness resulted from her striking heads with another child in

the play area. Clawson testified that she told Marx to allow Katerina time to recover

from the injury. Marx maintained that Clawson interfered with the visit. According to

Marx and his girlfriend, Katerina looked to Clawson for approval before interacting with

them and Clawson looked with distain toward the couple.

                                      PROCEDURE

       We arrive at the motions that are the subject of this appeal. On April 4, 2014,

William Marx moved the court, in this nonparental custody action, to vacate the February

2011 default order, findings of fact and conclusions of law, and decree granting custody

of Katerina to Debra Clawson. Marx argued for vacation of the order and decree, under

CR 60(b), because (1) the original decree was void for lack ofjurisdiction since Clawson

failed to complete service of process on him, and (2) he lacked notice that he was

Katerina's father until the 2013 paternity action. In the alternative, Marx sought

modification to the residential schedule. Assuming the court did not order immediate

placement of Katerina with him, Marx requested initial visitation from 2:00 p.m. Friday

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No. 32597-1-111
In re Custody ofKR.H


to 9:30 a.m. Monday every week. Marx proposed a residential schedule that gradually

reduced Clawson's custodial time with Katerina. William Marx did not ask for an

evidentiary hearing to determine if Clawson served him with process.

       Debra Clawson replied to the motion to vacate and motion to modify visitation

and opposed both of William Marx's requests. Clawson argued that she effectuated

service on Marx and that he failed to show detrimental treatment by Clawson of Katerina

sufficient to warrant a modification of the residential schedule. Clawson contended that

William Marx should have known by 2010 that he was the father of Katerina since

Janelle Hunter announced her pregnancy during a dinner that Marx attended, someone

called Marx a day after the birth of Katerina and announced to Marx the birth, and

Clawson listed Marx as the possible father in her 2011 nonparental custody petition.

Marx filed a motion to strike portions of Clawson's declaration as impermissible hearsay.

       On May 5, 2014, the trial court entertained William Marx's motion to vacate.

During oral argument on the motion, Marx did not request that the court conduct a

hearing with oral testimony to determine if Debra Clawson effectuated service of process.

The trial court denied the motion to vacate. The court deemed the motion to be late under

CR 60 and found that William Marx received the summons along with the other

pleadings. The trial court expressed concern about the court commissioner's failure to

sign a residential plan in February 2011.




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No. 32597-1-111
In re Custody ofK.R.H.


       A day later, a court commissioner heard argument on William Marx's motion to

modify the third-party custody decree. Marx argued that the establishment of his

paternity created a change in circumstances warranting a modification since Debra

Clawson used the terms of the residential schedule to restrict his contact with Katerina

while he attempted to establish a relationship with his daughter. Marx argued he was the

credible party because he readily disclosed negative aspects of his and Katerina's nascent

relationship, while Clawson submitted a declaration that relied on hearsay and

contradicted statements made in another declaration filed by Corey Clawson's girlfriend.

Marx argued adequate cause existed for the court to conduct a full hearing on a major

modification. In response, Debra Clawson contended that the trial court's statement that

Marx had known for several years that he was the father established as a matter of law

that Marx knew he was the father at the time of Clawson's nonparental custody petition.

Clawson stipulated to a minor modification of the custody decree, but argued against a

major modification.

      The court commissioner denied William Marx's request for a major modification.

The commissioner remarked that the standard for a major modification in a nonparental

custody action was the standard applied to a major modification in a parenting plan in a

marriage dissolution action. Under that standard, found in RCW 26.09.260, William

Marx needed to show a substantial change in circumstances, that the child's present

environment is detrimental to the child's physical, mental, or emotional health, and that

                                            13 

No. 32597-1-III
In re Custody ofK.R.H


the harm likely to be caused by a change in environment is outweighed by the advantage

to the change to the child. The court commissioner held that Marx did not fulfill the

standard.

       The court commissioner found that William Marx met the threshold for a minor

modification, and the commissioner entered a "stair-step residential schedule." Verbatim

Report of Proceedings (VRP) (May 6,2014) at 26. The schedule removed the

requirement that Debra Clawson supervise all visitation, and provided:

              For the first month, father to have every Wednesday, 3:00 pm to
       7:00 pm. In addition, the father to have every Saturday, noon to 4:00 pm.
       After that month, providing all of the time is exercised ... Father to have
       every Wednesday, 3:00 pm to 7:00 pm. Father to have every other
       weekend, Friday, 3:00 pm to Saturday, 3:00 pm

CP at 137.

       On May 14, 2014, William Marx moved the superior court to revise the court

commissioner's denial of his motion for a major modification. Marx also moved for

reconsideration of the trial court's denial of his CR 60(b) motion to vacate. In his motion

for reconsideration, Marx argued: "A determination of whether Mr. Marx was properly

served would be a credibility determination, and Mr. Marx has demonstrated that he is

the more credible of the two." CP at 141. Marx, however, did not request an evidentiary

hearing to resolve the parties' credibility. The trial court denied the motion for

reconsideration and the motion for revision.

                                 LA W AND ANALYSIS

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     In re Custody ofK.R.H.


            William Marx's appeal opens a Pandora's jar of issues that could fill the bluebook

     of a bar examination. The appeal compels many questions. First, must the trial court

     have conducted an evidentiary hearing to resolve the credibility of Marx and his witness,

     on the one hand, and Debra Clawson and her witness, on the other hand, before ruling on

     whether Clawson served Marx with process? Second, did Clawson complete service of

     process in this nonparental custody petition on Marx? Third, should the trial court have

     stricken portions of Debra Clawson's declaration? Fourth, was William Marx's motion

     to vacate the default order timely? Fifth, assuming the custody decree was valid because

     of effective service, did the trial court abuse its discretion in denying Marx's motion to

     vacate the default nonparental custody decree? Sixth, did Debra Clawson's failure to

     sign the nonparental custody petition under penalty of perjury invalidate the custody

     decree? Seventh, did Marx need to file a motion for adequate cause to modify custody

     when the trial court never earlier entered a residential placement schedule order? Eighth,

     was there adequate cause under RCW 26.09.260 for a major modification in Katerina's

     placement? Ninth, did the trial court violate Marx's constitutional right to due process

     when entering a nonparental custody decree restricting contact with his daughter before

     establishment of his paternity? Tenth, are Marx's constitutional rights to parent infringed

     by requiring him to show adequate cause for a major modification of the nonparental

     custody decree?




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No. 32597-l-III
In re Custody ofK.R.H.


       We rule that William Marx was effectively served and that he may not vacate the

order of default. We hold that William Marx did not show adequate cause to vacate the

default order as adequate cause is defined under RCW 26.09.260. Nevertheless, we hold

that, under our decisions in In re Custody ofTL., 165 Wn. App. 268, 268 P.3d 963

(2011), and In re Custody ofZ.C., No. 3243 I-I-III (Wash. Ct. App. Dec. 15,2015), and

pursuant to constitutional protections afforded a biological parent, Marx did not need to

show adequate cause for a major modification. We therefore vacate the order of

nonparental custody in favor of Debra Clawson. Because of our holding, we need not

address many of the other questions posed by the appeal's circumstances and raised by

the parties.

       Issue 1: Did the trial court commit error by failing to conduct an evidentiary

hearing to resolve William Marx's contention that Debra Clawsonfailed to effectuate

service ofprocess?

       Answer 1: We decline to address this assignment oferror since William Marx did

not seek, before the trial court, a hearing with live testimony.

       William Marx seeks reversal of the trial court's denial of his CR 60(b) motion to

vacate the default nonparental custody decree entered against him in February 2011. The

trial court entered both an order of default and a decree in February 2011.

       CR 55 declares:

               (c) Setting Aside Default.

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No. 32597-I-III
In re Custody ofK.R.H.


             (1) Generally. For good cause shown and upon such terms as the
      court deems just, the court may set aside an entry of default and, if a
      judgment by default has been entered, may likewise set it aside in
      accordance with rule 60(b).

In tum, CR 60 reads, in relevant part:

              (b) Mistakes; Inadvertence; Excusable Neglect; Newly
      Discovered Evidence; Fraud; etc. On motion and upon such terms as are
      just, the court may relieve a party or the party's legal representative from a
      final judgment, order, or proceeding for the following reasons:

              (5) The judgment is void; 


              The motion shall be made within a reasonable time. 


      William Marx argues that vacation of the order of default and custody decree is

proper under CR 60(b)(5) because he was not properly served a copy of Debra Clawson's

summons and petition for nonparental custody. He contends the trial court lacked

personal jurisdiction over him when entering the order and decree.

      A judgment entered in a proceeding failing to comply with procedural due process

requirements is void. In re Marriage ofEbbighausen, 42 Wn. App. 99, 102, 708 P.2d

1220 (1985). A judgment entered without jurisdiction over the parties is void. Lee v. W.

Processing Co., 35 Wn. App. 466, 469,667 P.2d 638 (1983). Proper service of the

summons and complaint is essential to invoke personal jurisdiction over a party, and a

default judgment entered without proper jurisdiction is void. In re Marriage of

Markowski, 50 Wn. App. 633, 635-36,749 P.2d 754 (1988); Mid-City Materials, Inc. v.

Heater Beaters Custom Fireplaces, 36 Wn. App. 480, 486, 674 P.2d 1271 (1984). A


                                            17 

No. 32597-1-III
In re Custody ofK.R.H


party may move to vacate a void judgment at any time. In re Marriage ofLeslie, 112

Wn.2d 612,618-19,772 P.2d 1013 (1989). Courts hold a nondiscretionary duty to vacate

void judgments. Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991);

Brenner v. Port ofBellingham, 53 Wn. App. 182, 188, 765 P.2d 1333 (1989).

       On appeal, William Marx notes that his testimony and the testimony of his

girlfriend conflicts with testimony of Debra and Corey Clawson concerning whether

Clawson served him with a summons, among other papers. Marx contends on appeal that

the trial court should have conducted an evidentiary hearing to determine the credibility

of the witnesses before ruling on whether he was properly served.

       When a motion to set aside a default judgment is supported by affidavits asserting

lack of personal service and the plaintiff files controverting affidavits, a triable issue of

fact is presented. Roth v. Nash, 19 Wn.2d 731,732,144 P.2d 271 (1943); Woodruffv.

Spence, 76 Wn. App. 207, 210,883 P.2d 936 (1994). Under such circumstances, the

court, in its discretion, may direct that an issue raised by motion be heard on oral

testimony if that is necessary for ajust determination. Woodruffv. Spence, 76 Wn. App.

at 210; Swan v. Landgren, 6 Wn. App. 713,495 P.2d 1044 (1972).

       We need not and do not answer whether the trial court abused its discretion when

failing to conduct an evidentiary hearing with oral testimony, because Marx never sought

an evidentiary hearing at the trial court. He contended below that he was the more

credible witness, but did not demand a trial with live testimony. We do not address

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No. 32597-1-II1
In re Custody ofKR.H


assignments of error not raised below.

       RAP 2.5 formalizes a fundamental principle of appellate review. The first

sentence of the rule reads:

              (a) Errors Raised for First Time on Review. The appellate court
       may refuse to review any claim of error which was not raised in the trial
       court.

Good sense lies behind the requirement that arguments be first asserted at trial. The

prerequisite affords the trial court an opportunity to rule correctly on a matter before it

can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013).

There is great potential for abuse when a party does not raise an issue below because a

party so situated could simply lie back, not allowing the trial court to avoid the potential

prejudice, gamble on the result, and then seek a new hearing on appeal. State v. Weber,

159 Wn.2d 252,271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,762,278

P.3d 653 (2012). The theory of preservation by timely objection also addresses several

other concerns. The rule serves the goal ofjudicial economy by enabling trial courts to

correct mistakes and thereby obviate the needless expense of appellate review, facilitates

appellate review by ensuring that a complete record of the issues will be available, and

prevents adversarial unfairness by ensuring that the prevailing party is not deprived of

victory by claimed errors that he had no opportunity to address. State v. Strine, 176

Wn.2d at 749-50; State v. Scott, Ito Wn.2d 682,685-86, 757 P.2d 492 (1988).

       By practice, trial courts resolve motions to vacate default judgments on affidavits

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No. 32597-1-III
In re Custody ofKR.H.


without live testimony. For this reason, a party seeking more and wishing an evidentiary

hearing should ask the trial court for an oral hearing before raising error on appeal.

          Leen v. Demopolis, 62 Wn. App. 473 (1991) controls. In Leen, this court affirmed

the trial court's denial of Chris Demopolis' motion to vacate a default judgment against

him for unpaid attorney fees owed to David Leen. In support of his motion to vacate,

Demopolis filed an affidavit stating he found a copy of the complaint, without a

summons, in his mailbox. Demopolis also filed another affidavit signed by two persons

who claimed to dine with Demopolis in a restaurant at the time Leen' s return of service

alleged he was served. Nevertheless, Demopolis never stated that he sat in a restaurant at

the alleged time of service at his home. On appeal, Demopolis argued that the lower

court must hear live testimony to properly assess the credibility of the conflicting

affidavits. Demopolis, however, made no request to present live testimony at the hearing

on his motion to vacate. We held that Demopolis waived his argument that the trial court

should have conducted an evidentiary hearing to determine witness credibility. We noted

that a litigant may not remain silent regarding a claimed error and later raise the issue on

appeal.

          WoodrujJv. Spence, 76 Wn. App. 207 (1994) resulted in the opposite outcome.

Richard Spence filed a declaration that included the statement he was in Bellingham at

the time the affidavit of service showed service occurred on him at his Renton home.

Spence also provided the affidavit of his son, who declared he was at his father's

                                             20 

No. 32597-1-III
In re Custody ofK.R.H


residence on the same date that service allegedly occurred. According to the son, no

process server entered the property. Another individual declared he worked in the shop

adjoining Spence's residence on the date of purported service and that he saw no one out

of the ordinary coming to or going from the residence. We remanded the case to the trial

court for an evidentiary hearing to assess the credibility of the witnesses. In so ruling, we

distinguished Leen v. Demopolis on the ground that a telephone message confirmed

Leen's affidavit of service and Demopolis' evidence of lack of service was equivocal.

       We choose to respect the teachings of Leen v. Demopolis rather than Woodruffv.

Spence. We could distinguish Woodruffand follow Leen on the basis that William

Marx's evidence is incomplete and wanting. But more fundamental reasons demand

conformity to Leen v. Demopolis.

       The opinion in Woodruff v. Spence does not mention whether either party asked

for an evidentiary hearing before the trial court. The opinion does not mention whether

Richard Spence claimed error on appeal because of the lack of a factual trial. The

Woodruff court did not address the question whether a party waives a hearing with live

testimony by failing to demand one before the lower court.

       Leen v. Demopolis applies a principle critical to the efficient functioning of the

court system. In addition to the rationales for RAP 2.5 listed above, the state's busy trial

courts deserve the opportunity to address a party's argument before an appellate court

reviews whether the court should have accepted an omitted contention. Trial courts know

                                             21 

No. 32597-I-II1
In re Custody ofK.R.H


the intimacies of a case better than reviewing courts and that knowledge affords the trial

courts a better occasion to address an argument in the first instance. William Marx

should have first granted the trial court an opportunity to exercise discretion as to whether

an evidentiary hearing would be helpful.

       Issue 2: Did the trial court err when ruling that Debra Clawson consummated

service ofprocess on William Marx?

      Answer 2: No.

       Corey Clawson filed a return of service under oath that declared he served

William Marx with the summons, petition, proposed residential schedule, notice of

adequate cause hearing, and a response to petition form. An affidavit of service, regular

in form and substance, is presumptively correct. Lee v.   w: Processing Co., 35 Wn. App.
at 469 (1983). The return, however, is subject to attack and may be discredited by

competent evidence. Lee v.   w: Processing Co., 35 Wn. App. at 469.
       This court reviews a trial court's decision on a motion to vacate an order of default

or default judgment for abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161

P.3d 956 (2007). Discretion is abused if it is exercised on untenable grounds or for

untenable reasons. Morin, 160 Wn.2d at 753. A decision is based on untenable grounds

or made for untenable reasons if it rests on facts unsupported in the record or was reached

by applying the wrong legal standard. Mitchell v. Wash. State Inst. ofPub. Policy, 153

Wn. App. 803,821-22,225 P.3d 280 (2009). A party that moves to vacate a default

                                            22 

No. 32597-1-II1
In re Custody ofK.R.H.


judgment based on improper service has the burden of proving the same by clear and

convincing evidence. Leen v. Demopolis, 62 Wn. App. at 478 (1991).

       William Marx and his girlfriend agree that Clawson appeared at Marx's home and

served papers. One must question why Corey Clawson would travel to Marx's home and

only deliver partial papers. Corey Clawson completed a declaration in which he listed a

summons, petition and other pleadings. One must question how Clawson knew of the

nomenclature for these pleadings without having them in his possession to serve.

       William Marx and his girlfriend deny that Marx received a summons.

Nevertheless, they fail to disclose the identity ofthe pleadings served on them. Marx

omits any mention in his declaration of whether he read the papers and how he disposed

of the papers. Based on this record, the trial court did not abuse its discretion when

ruling that William Marx was properly served with the summons and petition.

      Issue 3: Did the trial court err by refusing to strike hearsay testimony in Debra

Clawson's declaration?

      Answer 3: We refuse to address the issue since any hearsay testimony did not

impact the outcome ofthe hearings below and does not influence the result ofthis appeal.

       William Marx complains that Debra Clawson, in a declaration, testified that

someone called him the day after Katerina's birth to inform him of the birth. He notes

that Clawson did not testifY whether she overheard this conversation, and he objects to

the testimony as hearsay. We refuse to address this assignment of error because,

                                            23 

No. 32597-I-III
In re Custody ofK.R.H


assuming the testimony to be inadmissible, the trial court and the court commissioner did

not rely on the testimony when either denying the motion to vacate or the motion for a

major modification. Neither the superior court judge nor the court commissioner

mentioned the conversation in each's respective oral rulings. The order denying vacation

of the default decree and the order denying adequate cause for a major modification

incorporate no finding that the conversation occurred.

       An error is harmless if the outcome of the proceeding would have been the same

even if the error had not occurred. State v. Jackson, 102 Wn.2d 689,695,689 P.2d 76

(1984). In determining whether an evidentiary error is harmless the court views the

evidence actually considered by the trier of fact. Yates v. Evatt, 500 U.S. 391, 404, III

S. Ct. 1884, 114 L. Ed. 2d 432 (1991). Since the lower court did not consider the

purported hearsay when rendering decisions, the testimony of Debra Clawson was

harmless.

       William Marx may argue that the alleged hearsay testimony influenced both the

superior court judge and the court commissioner to find that he knew or should

reasonably have known that he was the father sometime during 2010. Other evidence

ably supports such a finding, however. Marx agrees he knew by early 2010 that Janelle

Hunter was pregnant. He had an opportunity to contact Hunter to ask ifhe was the father

and to pursue such knowledge immediately after the birth with a blood test. Ifhe did not

reasonably know by August 2010, he should have known by January 20 II. Debra

                                            24 

No. 32597-1-111
In re Custody ofK.R.H.


Clawson served him with legal pleadings, in which Clawson named him as the "possible"

father. Although Clawson employed the word ""possible," Clawson named no other

possible fathers. Marx should have pursued his parenthood then, ifnot earlier.

Inadmissible evidence is harmless even in a criminal case with a burden of proof of

beyond a reasonable doubt, if overwhelming untainted evidence supports the ruling.

State v. Anderson, 171 Wn.2d 764,770,254 P.3d 815 (2011).

      Issue 4: Did the trial court err when refusing to vacate the default decree of

custody?

      Answer 4: No.

       William Marx maintains that the trial court erroneously ruled that, even if he had

not been served with process, the passage of three years between entry of the default and

Marx's motion to vacate negated any possibility of vacation. He asks us to vacate the

default decree of nonparental custody because of this error. As noted earlier, we agree

with Marx that, if Debra Clawson did not complete service on him, the trial court needed

to vacate the default order regardless ofthe length of time that passed. A party may

move to vacate a void judgment at any time, and lack of service renders a judgment void.

In re Marriage ofMarkowski, 50 Wn. App. at 635-36 (1988); In re Marriage ofLeslie,

112 Wn.2d at 618-19 (1989). We disagree, however, with the premise of Marx's

argument. The trial court correctly ruled that Debra Clawson effectively served Marx.

      William Marx next argues that the default decree was not binding on him because

                                            25 

No. 32597-I-III
In re Custody ofK.R.H.


he had yet been declared to be the father of Katerina. Because the decree did not

purportedly bind him, Marx seeks to vacate the default order. If we vacated the order, no

order would currently address the custody of Katerina.

       CR 60 lists grounds on which a default order or judgment may be vacated. The

rule reads, in relevant part:

               (b) Mistakes; Inadvertence; Excusable Neglect; Newly
       Discovered Evidence; Fraud; etc. On motion and upon such terms as are
       just, the court may relieve a party or the party's legal representative from a
       final judgment, order, or proceeding for the following reasons:
               (1) Mistakes, inadvertence, surprise, excusable neglect or 

       irregularity in obtaining a judgment or order; 


             (3) Newly discovered evidence which by due diligence could not
       have been discovered in time to move for a new trial under rule 59(b);
             (4) Fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party;
             (5) The judgment is void;

              (7) If the defendant was served by publication, relief may be granted
       as prescribed in RCW 4.28.200;

               (9) Unavoidable casualty or misfortune preventing the party from
       prosecuting or defending; 

               ... ; or 

               (11) Any other reason justifYing relief from the operation of the
       judgment.
               The motion shall be made within a reasonable time and for reasons
       (l), (2) or (3) not more than 1 year after the judgment, order, or proceeding
       was entered or taken. . . .

We list only the grounds that might possibly apply to William Marx's motion.

Unfortunately, Marx does not identifY that ground, on which he relies. We will assume



                                             26 

No. 32597-1-111
In re Custody ofK.R.H.


he depends on the void judgment subsection, CR 60(b)(5), which posits no deadline for

filing.

          William Marx raises an interesting argument. Nevertheless, he forwards no law

that supports the contention that a decree of custody is not binding on a father before a

court adjudges the father to be the parent. RAP 10.3(a)(6) directs each party to supply, in

his brief, "argument in support of the issues presented for review, together with citations

to legal authority and references to relevant parts of the record." We do not consider

conclusory arguments that are unsupported by citation to authority. Joy v. Dep't ofLabor

& Indus., 170 Wn. App. 614, 629, 285 P.3d 187 (2012), review denied, 176 Wn.2d 1021,

297 P.3d 708 (2013). Passing treatment of an issue or lack of reasoned argument is

insufficient to merit judicial consideration. West v. Thurston County, 168 Wn. App. 162,

187,275 P.3d 1200 (2012); Holland v. City ofTacoma, 90 Wn. App. 533, 538,954 P.2d

290 (1998). Therefore, we decline to address whether the default decree bound William

Marx without an earlier parentage order.

          We note a number of irregularities in the procedure leading to the entry of the

nonparental custody order. Debra Clawson failed to sign the nonparental custody petition

under oath. The trial court failed to enter a residential placement schedule. We do not

address these abnormalities, in part, because we doubt that they prejudiced William

Marx. We also do not address the irregularities because Marx cites no authority that

supports a holding that the default decree is void because of the defect. Therefore, we

                                               27 

No. 32597-1-111
In re Custody ofK.R.H.


refuse to vacate the default decree of custody.

       Issue 5: Did the trial court commit error when refusing to grant William Marx's

motionfor a major modification in the placement ofKaterina?

       Answer 5: Yes. The trial court did not apply the correct standard.

       William Marx contends he need not show adequate cause for a major modification

of Katerina's placement, because he was not found to be an unfit parent at the time of the

nonparental custody decree. This last argument relies on Marx's constitutional rights as

the biological father of Katerina. Based on this court's precedents, we agree with Marx's

final argument. We hold that the trial court erred in failing to grant William Marx's

petition for a major modification without the trial court finding that he was an unfit father

or that placement of Katerina with Marx would result in actual detriment to the child's

growth and development. We further hold that the appropriate remedy for the trial court

error is not the vacation of the default decree of custody but a remand to the trial court to

conduct an evidentiary hearing in light of the correct standard to be applied to Marx's

motion for a major modification.

       The trial court's demand that William Marx show adequate cause, under RCW

26.09.260, for a major modification in Katerina's placement prompts a preliminary

discussion of constitutional rights. Parents have a fundamental right to autonomy in child

rearing decisions. In re Custody ofSmith, 137 Wn.2d 1, 13,969 P.2d 21 (1998), aff'd sub

nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality

                                             28 

No. 32597-1-III
In re Custody ofK.R.H


opinion). The United States Supreme Court has long recognized a constitutionally

protected interest of parents to raise their children without state interference. Wisconsin

v. Yoder, 406 U.S. 205, 235-36, 92 S. Ct. 1526,32 L. Ed. 2d 15 (1972); Pierce v. Soc'y of

Sisters, 268 U.S. 510,534,45 S. Ct. 571,69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262

U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The liberty interest of parents may

be the oldest of the fundamental liberty interests recognized by the Supreme Court.

Troxel v. Granville, 530 U.S. at 65 (2000). Freedom of personal choice in matters of

family life is a fundamental liberty interest protected by the due process clause of the

Fourteenth Amendment, the equal protection clause of the Fourteenth Amendment, and

the Ninth Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S.

745, 753, 102 S. Ct. 1388,71 L. Ed. 2d 599 (1982); Stanley v.Illinois, 405 U.S. 645, 651,

92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).

       The rights to conceive and to raise one's children are deemed '" essential, '"

"'basic civil rights of man.' " Stanley v. Illinois, 405 U.S. at 651 (1972) (quoting Meyer

v. Nebraska, 262 U.S. at 399 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct.

1110,86 L. Ed. 1655 (1942». The custody, care, and nurture of the child reside first in

the parents, whose primary function and freedom include preparation for obligations the

State can neither supply nor hinder. Stanley v. Illinois, 405 U.S. at 651.

       Since the custody of a child is a fundamental, constitutional right, state

interference is justified only if the State can show that it has a compelling interest and

                                             29 

No. 32597-1-III
In re Custody ofK.R.H.


such interference is narrowly drawn to meet only the compelling state interest involved.

In re Custody ofSmith, 137 Wn.2d at 15 (1998); In re Welfare ofSumey, 94 Wn.2d 757,

762, 621 P .2d 108 (1980). This standard is known as the strict scrutiny test. In re

Parentage ofCA.MA., 154 Wn.2d 52,57, 109 P.3d 405 (2005). Only under

"extraordinary circumstances" does there exist a compelling state interest that justifies

interference with parental rights. In re Custody ofShields, 157 Wn.2d 126, 145, 136 P.3d

117 (2006) (quoting In re Marriage ofAllen, 28 Wn. App. 637, 649, 626 P.2d 16 (1981».

The State lacks authority to redistribute infants to provide each child with the "best

family." Custody ofSmith, 137 Wn.2d at 20. The State also lacks the power to make

significant decisions concerning the custody of children merely because it could make a

"better decision." Custody ofSmith, 137 Wn.2d at 20.

       Arising from the clash between state authority and a parent's constitutional right is

a standard that controls this appeal and all nonparental custody petition suits. The

superior court may ultimately issue a custody order granting nonparental placement only

if the court finds that the parent is unfit or placement with the parent would result in

actual detriment to the child's growth and development. In re Custody ofB.MH, 179

Wn.2d 224, 235,315 P.3d 470 (2013); In re Custody ofE.A.T. W, 168 Wn.2d 335,344­

45,227 P.3d 1284 (2010); Custody ofShields, 157 Wn.2d at 142-43. This standard is

necessary in order to adhere to the constitutional mandate that deference be accorded




                                             30 

No. 32597-1-111
In re Custody 0/ K.R.H


parents in child custody disputes with nonparents. Custody 0/ E.A. T. W, 168 Wn.2d at

344; Custody o/Shields, 157 Wn.2d at 142.

       With this constitutional background, we address Washington's nonparental

custody petition act, under which Debra Clawson initiated this action. In 1987, the

Washington Legislature enacted the Parenting Act of 1987, chs. 26.09, 26.10 RCW,

which redesigned chapter 26.09 RCW, the parenting chapter for marital dissolution

actions. LAWS OF 1987, ch. 460. In tum, the legislature reenacted and continued the law

relating to third party actions involving custody of minor children by adopting chapter

26.10 RCW in order to distinguish third party actions from parental disputes concerning

placement of children. RCW 26.10.010.

       Under RCW 26.10.030(1), a third party may file a nonparental custody petition "if

the child is not in the physical custody of one of its parents or if the petitioner alleges that

neither parent is a suitable custodian." One of the key provisions of the nonparental

custody act is RCW 26.10.100. This section reads:

              The court shall determine custody in accordance with the best
       interests of the child.

Thus, the nonparental custody act incorporates the best interest standard declared

unconstitutional in other settings.

       In Custody o/Shields, 157 Wn.2d 126 (2006), the Washington Supreme Court

withheld a declaration that RCW 26.10.100 is unconstitutional and instead inserted


                                              31 

No. 32597-1-III
In re Custody ofKR.H


additional requirements into the nonparental custody petition setting. The Court

recognized that the best interest standard fails to afford the natural parent required

constitutional protections. But the statute is constitutional when adding the requirement

that the parent be unfit or placement with the parent causes actual detriment to the child's

growth and development. The Supreme Court reversed the trial court's grant of the child

to a stepparent because, although the trial court referred to an actual detriment standard,

the record reflected that the trial court applied a best interest standard. The requisite

showing by the nonparent is substantial. Custody ofShields, 157 Wn.2d at 145.

       The phrase "parental unfitness" employs vacuous words. Some Washington cases

introduce other vocabulary to assist lower courts in resolving custody disputes, although

the alternative terminology still affords minimal particularity in determining unfitness. In

the context of a termination proceeding when the State must also show current unfitness,

the State must prove that the parent's parenting deficiencies prevent the parent from

providing the child with "basic nurture, health, or safety" by clear, cogent, and

convincing evidence. RCW 13.34.020; In re Welfare ofA.B., 181 Wn. App. 45, 58-59,

323 P.3d 1062 (2014). The Evergreen State Supreme Court has also defined parental

unfitness as being unable to meet a child's basic needs, In re Custody ofB.MH, 179

Wn.2d at 236 (2013), or lacking the necessary capacity for giving parental care. In re

Welfare ofAschauer, 93 Wn.2d 689, 694,611 P.2d 1245 (1980). Unfit parents include

parents causing nonaccidental injury, neglect, death, sexual abuse and cruelty to children

                                             32 

No. 32597-1-II1
In re Custody ofK.R.H


or parents who deprive a child of his or her right to conditions of minimal nurture, health,

and safety. RCW 26.44.010; In re Custody ofB.MB., 179 Wn.2d at 236.

       The expression "actual detriment to a child's growth and development" also lacks

concreteness, but the Washington courts supply no alternative terminology. The state

Supreme Court has observed that whether placement with a parent will result in actual

detriment to a child's growth and development is a highly fact-specific inquiry, and

precisely when actual detriment outweighs parental rights must be determined on a case-

by-case basis. Custody ofShields, 157 Wn.2d at 143 (2006). When this heightened

standard is properly applied, the requisite showing required by the nonparent is

substantial and a nonparent will be able to meet this substantial standard in only

'" extraordinary circumstances.'" Custody ofShields, 157 Wn.2d at 145 (quoting In re

Marriage ofAllen, 28 Wn. App. at 649). Examples include (I) when a deaf child needed

a caregiver who could effectively communicate with the child and the father was unable

to do so, (2) when a suicidal child required extensive therapy and stability at a level the

parents could not provide, and (3) when a child who had been physically and sexually

abused required extensive therapy and stability at a level the parent could not provide. In

re Custody ofB.MH, 179 Wn.2d at 236.

       Just as the marital dissolution chapter offers a divorced parent an opportunity to

modifY a custody or residential placement order, the chapter addressing nonparental




                                             33 

No. 32597-1-111
In re Custody ofK.R.H.


custody actions affords an opportunity for a parent to seek a modification of the custody

decree. RCW 26.10.190(1) declares:

               The court shall hear and review petitions for modifications of a
       parenting plan, custody order, visitation order, or other order governing the
       residence of a child, and conduct any proceedings concerning a relocation
       of the residence where the child resides a majority of the time, pursuant to
       chapter 26.09 RCW.

The controlling statute, RCW 26.09.260, for modifying a custody decree in a marriage

dissolution action reads, in part:

               (1) ... the court shall not modify a prior custody decree or a
       parenting plan unless it finds, upon the basis of facts that have arisen since
       the prior decree or plan or that were unknown to the court at the time of the
       prior decree or plan, that a substantial change has occurred in the
       circumstances of the child or the nonmoving party and that the modification
       is in the best interest of the child and is necessary to serve the best interests
       of the child ....
               (2) In applying these standards, the court shall retain the residential
       schedule established by the decree or parenting plan unless:
               (a) The parents agree to the modification;
               (b) The child has been integrated into the family of the petitioner
       with the consent of the other parent in substantial deviation from the
       parenting plan; [or]
               (c) The child's present environment is detrimental to the child's
       physical, mental, or emotional health and the harm likely to be caused by a
       change of environment is outweighed by the advantage of a change to the
       child.

When addressing William Marx's motion to modify the nonparental custody decree, the

trial court employed the standard embedded in RCW 26.09.260. We conclude use of this

standard to be error.




                                              34
No. 32597-1-111
In re Custody ofK.R.H


       Even more than a child custody decree in a marriage dissolution action, a decree

awarding custody to a nonparent under chapter 26.10 RCW is never permanent.

Nonparental custody is inherently impermanent:

               A nonparent custody order confers only a temporary and uncertain
       right to custody of the child for the present time, because the child has no
       suitable legal parent. When and if a legal parent becomes fit to care for the
       child, the nonparent has no right to continue a relationship with the child.

In re Parentage ofJ.A.B., 146 Wn. App. 417, 426, 191 P.3d 71 (2008). More importantly

for this appeal, since the nonparental custody proceeding provided by chapter 26.10

RCW constitutionally divests a parent of rights only if the trial court finds parental

unfitness or actual detriment, a parent against whom the constitutional standard is not

found to have been proved has a liberty interest that remains undiminished. In re

Custody ofTL., 165 Wn. App. 268 (2011).

       In T.L., Tia Link's six-year-old son had lived with his grandmother for most of his

life because Link had not been stable or responsible enough to meet T.L. 's needs. The

grandmother petitioned for nonparental custody ofT.L., which Link resisted for a year.

Eventually, however, Link filed a joinder in her mother's petition. The trial court entered

agreed findings, conclusions, and orders. Link claimed she had relinquished control over

T.L. only temporarily, with the understanding that she could have her son back when she

was stable. The grandmother denied any understanding that her custody ofT.L. was

temporary. When Tia Link filed a petition to modify the custody and residential schedule


                                             35 

No. 32597-I-III
In re Custody 0/K.R.H


based on her professed success in achieving stability, a court commissioner concluded,

and the superior court affirmed, that Link had not demonstrated a statutorily required

change in T.L.'s or his grandmother's circumstances.

       In T.L., we held that the modification standards and process provided by RCW

26.09.260(1) interfered with Tia Link's right to rear her son and failed strict scrutiny

analysis when T.L.'s grandmother had never demonstrated that Link was an unfit parent

or that placing T.L. with her would result in actual detriment to his growth and

development. We recognized that the requirement to prove a substantial change in the

child's or nonmoving parent's circumstances reflects a legislative desire to minimize

custody litigation between divorced parents, but held that, in a case such as this, it is

constitutional error to require a parent seeking restored custody of her or his child to

satisfy the requirements ofRCW 26.09.260. We recently followed the teachings of T.L.

in In re Custody o/Z.c., No. 32431-I-III (Wash. Ct. App. Dec. 15,2015).

       The trial court did not enter the 2011 custody decree favoring Debra Clawson and

findings supporting the decree after a contested hearing during which William Marx

presented evidence. Marx may argue that the lack of a contested hearing alone requires a

major modification to the decree. We question the validity of the argument, since he

enjoyed the opportunity in 2011 to litigate his parental rights. We vacate the trial court's

2014 order denying the major modification on other grounds.




                                             36
No. 32597-I-III
In re Custody ofK.R.H.


       In the February 3, 20 II, findings of fact supporting the nonparental custody

decree, the trial court entered no finding that William Marx was an unfit parent or that

placement with him would constitute actual detriment to the child's development. The

trial court entered a finding that William Marx is not a "suitable" parent. We recognize

some similarity in the meaning of the words "unfit" and "unsuitable." Nevertheless, we

do not equate unsuitability with unfitness. RCW 26.10.032 demands that, in order to

establish adequate cause to proceed with a nonparental custody action, the petitioner must

(I) show the child is not in the physical custody of a parent or the parents are unsuitable

custodians and (2) allege specific facts that, if proven true, establish the parent is unfit or

the child would suffer actual detriment if placed with the parent. The statutory scheme

thus distinguishes between an unsuitable parent and an unfit parent. The term

"unsuitable" may extend to a deficiency in skills; whereas the word "unfit" could extend

to a total lack of qualifications. Assuming unsuitability equates to unfitness, Debra

Clawson does not show this court that she provided the superior court, in 2011, with any,

let alone clear and convincing, evidence to substantiate a finding that Marx was an

unsuitable father.

       The trial court, in the 2011 decree, also found that Katerina was removed from

parental care due to findings of neglect and/or abuse by CPS, and that both parents failed

to meet minimum standards of care for Katerina and failed to complete services. These

findings could not apply to William Marx, however. He never provided the care for

                                              37 

No. 32597-1-111
In re Custody ofK.R.H


Katerina. CPS never entered any findings with regard to Marx. The record does not

establish that any court or government agency ordered Marx to submit to services.

       The findings of fact and conclusions of law signed by the trial court in 2011 also

included a finding that William Marx's visitation should be limited because of his alleged

conviction of a child assault of third degree. Nevertheless, Debra Clawson does not

claim that she provided the superior court in 2011 with any evidence of a criminal

conviction. RCW 26.1 0.135 provides: "Before granting any order regarding the custody

of a child under this chapter, the court shall consult the judicial information system, if

available, to determine the existence of any information and proceedings that are relevant

to the placement ofthe child." The record does not establish that the trial court

performed the requisite consultation in 2011.

                                      CONCLUSION

       We remand to the trial court for further proceedings. Unless Debra Clawson can

show during an evidentiary hearing that William Marx is an unfit father or that placement

of Katerina with Marx would result in actual detriment to the child's growth and

development, Marx's petition for a major modification in the residential placement of

Katerina should be granted.




                                             38 

No. 32597-1-III
In re Custody ofK.R.H


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                             3
                                            Fearing.~ , J
WE CONCUR:

  ~JJ 

Korsmo,J'7
                                                                               j





                                           39 

