                                                                 FILED
                                                             DECEMBER 5, 2019
                                                         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 Marriage of               )         No. 35735-0-III
                                               )
MICHAEL L. BRANNING,                           )
                                               )
                     Respondent,               )
                                               )         UNPUBLISHED OPINION
              and                              )
                                               )
LAURA E. BRANNING,                             )
                                               )
              Appellant.                       )

       LAWRENCE-BERREY, C.J. — Laura Branning appeals the residential schedule

ordered by the trial court, which grants mostly equal residential time for the parties’

three children. She argues the trial court abused its discretion by failing to consider the

RCW 26.09.187(3)(a) residential factors. We agree and remand for adequate findings.
No. 35735-0-III
In re Marriage of Branning


                                          FACTS

       Michael and Laura Branning were married on September 9, 2000. Michael and

Laura have three minor children: H.B., L.B., and C.B.1

       H.B. was born in October 2007. Laura took three months leave from work to care

for H.B., while Michael took one week of leave. After the first three months, Laura

returned to work, and H.B. was placed in daycare. Laura took H.B. to daycare and picked

him up after work.

       L.B. was born in May 2010. Laura took three months leave from work to care for

L.B., and Michael took about 10 days of leave. In mid-October 2010, Laura briefly

returned to work, but her job ended in November. She then cared for the two children at

home, while Michael worked fulltime. In June 2011, Laura began working from home as

a real estate agent. For the next several years, Laura was the primary caregiver for the

children, including C.B., who was born in September 2014.




       1
          When parties share the same last name, we customarily refer to them by their first
names. This promotes clarity and avoids the overuse of “Ms.” and “Mr.” Also, we use
initials to refer to minors. See General Court Order for Courts of Appeals, In re Changes
to Case Title (Wash. Ct. App. Aug. 22, 2018).

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In re Marriage of Branning


        The parties separated in August 2016. A court commissioner ordered the children

placed with Laura for 8 of 14 days, and with Michael for 6 of 14 days. An actual

temporary parenting plan was not entered until April 14, 2017. Substantial evidence

shows that the parties did not follow this mostly shared residential schedule. In general,

Laura cared for any child who was sick or not in school on days Michael was working.

        Sometime before the October 2017 trial, Michael’s position with his employer

changed. He testified the change gave him increased flexibility so he could work from

home.

        At trial, Michael proposed a parenting plan that alternated weekly residential time

with the children. Although a bit unclear from our record, Laura proposed a parenting

plan in which she would have the children 9 of 14 days. The court adopted Michael’s

plan with one modification: During Michael’s week with the children, the children would

spend one evening with their mother.

        The trial court did not enter any written findings pertaining to the residential

schedule. Instead, the final parenting plan referred to the trial court’s oral ruling.

Because this appeal asks us to determine whether the trial court sufficiently considered

the statutory residential factors, we set forth the portion of the trial court’s oral ruling that

pertains to the residential schedule:


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In re Marriage of Branning


      [B]oth of you are in unusual employment situations where you both have
      flexible jobs and more time can be spent with [the] children throughout the
      workweek. For that reason, I do think that it’s in the best of interest of your
      children to adopt the proposed parenting plan by Mr. Branning. . . .
              . . . I think you also understand the importance of your children
      spending time with their mother and there’s going to be times during your
      custody period that I hope and I expect that you’re going to provide her
      additional time because I think especially for a two-year-old having that
      long period away could be problematic. And I’m going to order that at
      least on [Laura’s] noncustodial weeks I want to at least give a Wednesday .
      . . I want to give her a guaranteed time during your week to make sure that
      she has frequent contact. I’m going to order that it be all of your children,
      because I’ll respect the parameters of what you originally agreed to and I
      also agree your children’s best interest is served by keeping the siblings
      together.
              ....
              And, sir, the other reason why I came to this decision again, I believe
      your testimony, and the Court’s going to kind of rely on you, that I hope
      that you give her as much time during your time as you possibly can
      because it is in your children’s best interest to do that and you testified to
      holding that principle.
              ....
              . . . I just think in the best interest of your kids, given the
      employment that you have, given the circumstances that you’ve been in, I
      think this plan will provide sufficient stability for your children and give
      them the ability to have great relationships with both of their parents.

Report of Proceedings (RP) at 390-94 (emphasis added).

      Laura timely appealed to this court.




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In re Marriage of Branning


                                        ANALYSIS

       PARENTING PLAN

       Laura contends the trial court abused its discretion by adopting a parenting plan

without sufficiently considering the statutory residential factors. We agree.

       A parenting plan is reviewed for an abuse of discretion. In re Marriage of

Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). “An abuse of discretion occurs

only when the decision of the court is ‘manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d

32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775

(1971)). There are various ways in which a trial court’s decision can be manifestly

unreasonable. One way is if the trial court did not correctly apply the legal standard. In

re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

       RCW 26.09.187(3)(a)2 requires the trial court to consider various factors when

determining the residential schedule. If the trial court does not enter written findings that



       2
         (3) RESIDENTIAL PROVISIONS.
              (a) The court shall make residential provisions for each child which
       encourage each parent to maintain a loving, stable, and nurturing
       relationship with the child, consistent with the child’s developmental level
       and the family’s social and economic circumstances. The child’s residential
       schedule shall be consistent with RCW 26.09.191. Where the limitations of

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In re Marriage of Branning


reflect consideration of the residential factors, we may review the trial court’s oral ruling.

In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981). When evidence

of those factors is before the trial court and its oral opinion reflects consideration of those

factors, specific findings on each factor are not required. In re Marriage of Croley, 91

Wn.2d 288, 292, 588 P.2d 738 (1978). This is because the trial court’s oral comments on

a factor sufficiently reflect its consideration of that factor. Id. But any presumption that

the trial court considered a contested statutory residential factor is rebutted by the trial



     RCW 26.09.191 are not dispositive of the child’s residential schedule, the
     court shall consider the following factors:
             (i) The relative strength, nature, and stability of the child’s
     relationship with each parent;
             (ii) The agreements of the parties, provided they were entered into
     knowingly and voluntarily;
             (iii) Each parent’s past and potential for future performance of
     parenting functions as defined in RCW 26.09.004(3), including whether a
     parent has taken greater responsibility for performing parenting functions
     relating to the daily needs of the child;
             (iv) The emotional needs and developmental level of the child;
             (v) The child’s relationship with siblings and with other significant
     adults, as well as the child’s involvement with his or her physical
     surroundings, school, or other significant activities;
             (vi) The wishes of the parents and the wishes of a child who is
     sufficiently mature to express reasoned and independent preferences as to
     his or her residential schedule; and
             (vii) Each parent’s employment schedule, and shall make
     accommodations consistent with those schedules.
             Factor (i) shall be given the greatest weight.
(Emphasis added.)

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In re Marriage of Branning


court’s failure to discuss that factor in its written findings or oral ruling. Murray, 28 Wn.

App. at 189-90.

       Here, there was substantial evidence presented by the parties concerning at least

four of the seven statutory residential factors—(i) (relative strength of child-parent

relationship), (iii) (a parent’s past and potential for future performance of parental

functions), (iv) (emotional needs and developmental level of a child), and (vii) (each

parent’s employment schedule). Michael argues the trial court’s oral ruling reflects that it

considered these statutory factors. We disagree.

       The trial court mainly considered only one factor, each parent’s employment

schedule. Nowhere did the trial court discuss the relative strength of the parent-child

relationship, or each parent’s past and potential for future performance of parental

functions. The trial court did discuss the emotional needs of the children and its

comments show this factor weighed in Laura’s favor.

       In their closing arguments, the parties addressed the statutory residential factors.

The trial court commented that it gave careful thought to the parenting plan and may well

have considered the factors argued by the parties. But the legal standards that control our

review require more. The trial court must consider the disputed residential factors either




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No. 35735-0-111
In re Marriage ofBranning


in its written findings or in its oral comments. Here, neither the trial court's written

findings nor its oral comments addressed the disputed residential factors.

       The required remedy is to remand for adequate findings. To the extent insufficient

evidence was presented on any particular residential factor, the trial court should note this

and need not make any specific finding. Given our disposition, we deny Michael's

request for attorney fees.

       Remand for adequate findings.

       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.


                                           Lawrence-Berrey, C.J.

WE CONCUR:




Siddoway, J.




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