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                                                                                                   f OF APPEALS
                                                                                       2014 FEB 2
                                                                                                       AM 9 22

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    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                DIVISION II

In the Matter of the Marriage of:


ALEXANDRA SWAKA,


                                    Respondent,                           No. 42758 -3 -II
                                                                 Consolidated with No. 43518 -7 -II


          and                                                     PART PUBLISHED OPINION


JAMES SWAKA,


                                     Appellant.




          MAXA, J. — James Swaka appeals the trial court' s decision to allow Alexandra Swaka to

                Skypel


testify   via            from Spain at a relocation trial. We hold that the trial court did not abuse its


discretion in allowing remote testimony under CR 43( a)( 1) and therefore, affirm on that issue. In

the unpublished portion of this opinion, we address James Swaka' s additional assignments of


error and affirm on all issues except for the award of attorney fees relating to various pre -trial

motions. We reverse and remand for further proceedings with regard to the attorney fee award.




1 Skype is a live video chat and long -distance voice calling service. See, e. g., Fuqua v. Fuqua, 57
So. 3d 534, 537 ( La. Ct.       App.   2011).
No. 42758 -3 - II, consolidated with No. 43518 -7 -II


                                               FACTS


         This appeal arises from ongoing litigation between former spouses James and Alexandra

Swaka over Alexandra' s2 move to Spain with the parties' two children. James and Alexandra

married in 2002, the couple separated in November 2006, and Alexandra filed for dissolution in

March 2007. James did not respond or appear, and in September Alexandra obtained a default


dissolution order, child support order, and parenting plan. Alexandra was designated as the

primary residential parent.


         In August 2009, Alexandra moved to Spain with the children for a study abroad program.

James did not object to the relocation at that time. In June 2010, while still in Spain, Alexandra


and the children began living with Juan Gonzalez and his two children, who were the same ages

as the Swaka children. Alexandra eventually decided to remain in Spain permanently. In April

2011, Alexandra moved for an order permitting her to permanently relocate to Spain and for an

order waiving notice requirements for relocation. The trial court granted the motions.

         In June 2011, James moved for reconsideration of the trial court' s order waiving notice

requirements and he objected to the relocation. The trial court allowed Alexandra' s relocation to


Spain pending trial and issued a temporary order stating that the children would remain with

Alexandra and that the original 2007 parenting plan would remain in full force and effect.

          The relocation trial took place in March 2012. Alexandra moved for an order permitting

her to testify via Skype at trial. In support of her motion, Alexandra argued that it would be

inconvenient and disruptive to their children if she had to travel to Washington to testify. She

also argued that she was worried that her parents might try to have her detained in Washington



2
    Because the parties share the same last name, we refer to them by their first names for clarity.
We intend no disrespect.
                                                   2
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


 in   order   to   get   their hands   on      my kids." Clerks Papers ( CP)        at   650 -51. Alexandra' s concerns


were based on her parents' previous efforts to force her to return to the United States with the


children, including threatening to have her arrested and attempting to have her deported from

Spain. The trial court granted the motion over James' s objection. James appeals this decision.

                                                       ANALYSIS


         James argues that the trial court abused its discretion when it allowed Alexandra to testify
                                           3
via   Skype    under      CR 43( a)( 1).        We disagree because Alexandra showed good cause in


compelling circumstances for testifying remotely.

A.     INTERPRETATION OF CR 43( a)( 1)


         CR 43( a)( 1) provides:


         In all trials the testimony of witnesses shall be taken orally in open court, unless
         otherwise directed. by the court or provided by rule or statute. For good cause in

         compelling circumstances and with appropriate safeguards, the court may permit
         testimony in open court by contemporaneous transmission from a different
         location.


The second sentence of CR 43( a)( 1) was added in 2010 and was modeled after an identical


provision     in Federal Rule        of    Civil Procedure (FRCP) 43(         a).   WASHINGTON STATE REGISTER


 WSR) 10 -05 -090 ( 2010).


         The question here is whether the trial court properly found that there was " good cause in

compelling         circumstances"      to      allow   Alexandra to testify   via   Skype. CR 43(    a)(   1).   Because CR


43( a)( 1) states that the trial court " may" permit remote contemporaneous testimony, the rule is



  Although James also assigns error to the trial court' s order permitting Alexandra' s witnesses to
testify via Skype, he argues in his briefing only that the trial court should not have permitted
Alexandra to testify via Skype. Accordingly, we consider only James' s arguments regarding
Alexandra' s Skype testimony. RAP 10. 3( a)( 6); Kadoranian v. Bellingham Police Dep' t, 119
Wn.2d 178, 191, 829 P. 2d 1061 ( 1992), overruled on other grounds by State v. Jimenez, 128
Wn.2d 720, 911 P.2d 1337 ( 1996).
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No. 42758 -3 -II, consolidated with No. 43518 -7 -II



by its plain terms discretionary and we review the trial court' s ruling on the issue for abuse of

discretion. See United States      v.   Kivanc, 714 F. 3d 782, 791 ( 4th Cir. 2013) ( rulings regarding use


of remote   testimony    under   FRCP 43(    a) reviewed     for   abuse of   discretion), cert. denied, 134 S. Ct.


301 ( 2013).   A trial court abuses its discretion if its decision is manifestly unreasonable or based

on untenable grounds or untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39, 46- 47,

940 P. 2d 1362 ( 1997).


       No Washington court has interpreted the new language in CR 43( a)( 1) allowing remote

contemporaneous testimony. In Kinsman v. Englander, 140 Wn. App. 835, 843 -44, 167 P. 3d

622 ( 2007), we held that under the pre -2010 version of CR 43( a)( 1) a trial court could not allow


telephonic testimony without the consent of all parties. But Kinsman does not apply to the

current version of the rule, which contemplates allowing remote testimony under certain

circumstances.



        The drafters of the 2010 amendment intended that Washington courts seek guidance from


the 1996 Advisory Committee Note to FRCP 43 when interpreting this provision. WSR 10 -05-

090:


        The federal advisory committee note provides in relevant part:

        The importance of presenting live testimony in court cannot be forgotten. The
        very ceremony of trial and the presence of the factfinder may exert a powerful
        force for truthtelling. The opportunity to judge the demeanor of a witness face -to-
        face is accorded great value in our tradition. Transmission cannot be justified
        merely by showing that it is inconvenient for the witness to attend the trial.
            The most persuasive showings of good cause and compelling circumstances
        are likely to arise when a witness is unable to attend trial for unexpected reasons,
        such as accident or illness, but remains able to testify from a different place.
        Contemporaneous transmission may be better than an attempt to. reschedule the
        trial, particularly if there is      a risk   that   other —   and perhaps more important —
        witnesses might not be available at a later time.
            Other possible justifications for remote transmission must be approached
        cautiously....      An unforeseen need for the testimony of a remote witness that

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No. 42758 -3 -II, consolidated with No. 43518 -7 -II


          arises   during   trial ...    may establish good cause and compelling circumstances.
          Justification is particularly likely if the need arises from the interjection of new
          issues during trial or from the unexpected inability to present testimony as
          planned from a different witness....
             A party who could reasonably foresee the circumstances offered to justify
          transmission of testimony will have special difficulty in showing good cause and
          the compelling nature of the circumstances....
               Safeguards must be adopted that ensure accurate identification of the witness
          and   that   protect against     influence    by   persons present with     the   witness.   Accurate
          transmission likewise must be assured.


FRCP 43 advisory committee' s note to 1996 amendments.

          Where a state rule has the same language as a federal rule, we may look for guidance to

courts applying the federal rule. Beal v. City ofSeattle, 134 Wn.2d 769, 777, 954 P. 2d 237

 1998).    In fact, the drafters of the amendment to CR 43( a)( 1) also intended that Washington

courts seek guidance        from federal       court   interpretations   of   FRCP 43( a). WSR 10 -05 -090.


          Federal appellate courts reviewing trial courts' rulings under FRCP 43 (a) allowing

remote contemporaneous testimony have been reluctant to reverse such rulings. See, e. g., El-

Hadad     v.   United Arab Emirates, 496 F. 3d 658, 669 ( D. C. Cir. 2007) ( trial court acted within its


discretion when permitting plaintiff to testify via Internet video from Egypt when he had tried

and   failed to    obtain visa   to. U. S.);   Thornton v. Snyder, 428 F. 3d 690, 698 -99 ( 7th Cir. 2005)


 affirming trial court' s decision to allow trial by video conference due to plaintiff's incarceration

and high escape risk and need for 20 additional witnesses to travel from different parts of the

state);   Beltran -Tirado v. Immigration and Naturalization Serv., 213 F.3d 1179, 1186 ( 9th Cir.

2000) ( decision       to allow witness who lived in Missouri to testify telephonically at hearing in San

Diego did not violate due process because remote testimony would have been admissible under

FRCP 43( a)).




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    No. 42758 -3 -II, consolidated with No. 43518 -7 -II



             Federal appellate courts generally have affirmed trial court rulings refusing to allow

    remote   testimony      as well,   deferring   to the trial    court' s   discretion. See,    e. g.,   Kivanc, 714 F. 3d at


    791 ( trial court did not abuse discretion in denying motion for two claimants in a forfeiture

    action to testify from Turkey after weighing conflicting testimony regarding one claimant' s

    ability to travel and because second claimant' s reason for testifying remotely was that he was

    simply " ` unwilling to      come    back' " to the U. S.); Air Turbine Tech., Inc. v. Atlas Copco AB, 410


    F. 3d 701, 714 ( 11th Cir. 2005) (      affirming trial court' s denial of motion to use video conference

    testimony, noting that whether to allow video teleconference testimony was " a matter expressly

    reserved to the sound discretion of the trial court").


    B.    GOOD CAUSE IN COMPELLING CIRCUMSTANCES


              Determining whether a party has shown " good cause in compelling circumstances"

    involves a fact -specific inquiry that rests in the sound discretion of the trial court. We hold that

    under the circumstances here, the trial court did not abuse its discretion in allowing Alexandra to

    testify remotely from Spain.

1             First, traveling from Spain to Washington would have been a hardship for Alexandra and

    the children. In her declaration in support of her motion to testify via Skype, Alexandra stated,

     I reside in Spain, and would have to travel internationally to appear at court in person. I would

    also have to either take my children out of school so that they could travel with me or place them

    in the   care of others while      I travelled."    CP    at   625. She     also stated, "[   I] t will not just be


    inconvenient for me to travel to Washington, but extremely difficult on my entire family. I play

    a vital role   in the   daily functioning      of our   family."    CP at 650.


              James notes that Alexandra did not allege that she was unable to travel, and argues that


    inconvenience is not a " compelling circumstance" because trial testimony is inconvenient for

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No. 42758 -3 - II, consolidated with No. 43518 -7 -II


most witnesses. And the 1996 advisory committee note to FRCP 43 states that remote testimony

 cannot be justified merely by showing that it is inconvenient for the witness to attend the trial."

However, the fact that travel would have disrupted the children' s education and their lives shows

actual   hardship,       not mere "     inconvenience."     Requiring Alexandra to travel to Washington to

testify would have forced her to choose between uprooting the children and having them travel

with her or leaving them in a foreign country in the care of a nonrelative.

            Further, even if Alexandra' s concerns can be characterized as inconvenience, significant


inconvenience may be a factor that the trial court can consider in its discretion along with other

factors in making the good cause determination. Beltran -Tirado, 213 F. 3d at 1186 ( the

government had " reason to arrange" telephonic testimony because the witness lived in Missouri

and   the   hearing     was   in San Diego);       Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 480 ( D. Md. 2010)

 the cost of international travel provided good cause for contemporaneous transmission of


testimony when plaintiffs from Honduras made no more than $7, 000 per year).

            Second, James and Alexandra' s son had a serious skin condition that was subject to


aggravation by air travel. James himself expressed concern about this medical condition in a

    trial
pre -        pleading, stating that the           condition " could   be life -
                                                                              threatening."   CP at 167. Again, if


Alexandra was required to travel to Washington for trial she would have to choose between


irritating her son' s medical condition or leaving him in a foreign country with a nonrelative.

            Third, Alexandra had a legitimate concern that her parents might try to interfere with her

custody      of   the   children   if   she   traveled to Washington either    alone or with   the   children.   She


stated in her declaration:


             T] he Snellers have tried everything              possible (    including lying to the Spanish
            authorities that I falsified my visa) to get the kids and me back in Washington.


                                                                7
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


           Their desperation makes me very worried.about what they might try to do to have
           me or Juan detained in Washington in order to get their hands on my kids.

CP   at   650 -51.   The record reflects that Alexandra' s parents previously had made threats against

Alexandra to take legal action to get the children back to the United States, including having her

arrested. The record also shows that Alexandra' s parents had taken other steps against her,


including having her visa revoked and attempting to have her and the children deported from

Spain. Under the circumstances, it was appropriate for the trial, court to consider this factor in


assessing good cause under CR 43( a)( 1).

           Fourth, this case involves a bench trial. Video testimony is not the same as actual

presence, and in certain cases the ability to observe a witness' s demeanor might be affected. See

Thornton, 428 F. 3d at 697. However, a trial court may be better able than a jury to evaluate the

testimony and assess the credibility of a witness testifying remotely.

           We hold that under the specific circumstances presented in this case, the trial court did

not abuse its discretion in finding " good cause in compelling circumstances" to justify remote

contemporaneous         testimony   under   CR 43(   a)(   1).   And James does not argue that the trial court


did not provide " appropriate safeguards" regarding the remote testimony as CR 43( a)( 1)

requires. Accordingly, we affirm the trial court' s decision to grant Alexandra' s motion to allow

her to testify via Skype.

           We consider James' s remaining arguments in the unpublished portion of this opinion, and

affirm on all issues except for the award of attorney fees to Alexandra. We reverse and remand

on   that issue only.
No. 42758 -3 - II, consolidated with No. 43518 -7 -II



         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.


         We now address James Swaka' s remaining arguments. We hold that ( 1) the trial court

did not abuse its discretion when it dismissed James' s petition to modify the parenting plan for

failure to show adequate cause because James failed to show changed circumstances justifying a

major modification of      the parenting      plan; (   2) the trial court did not abuse its discretion when it


denied appointment of a guardian ad litem (GAL) because James failed to show how additional

investigation into allegations of sexual abuse and his relationship with the children would have

been helpful and because James did not present a way to have the GAL meet with the children in

Spain; ( 3)   the trial court failed to make any written findings regarding the award of attorney fees

relating to James' motion to modify the parenting plan, and therefore the case must be remanded

for   reconsideration of   that issue   and   entry   of written   findings, if   appropriate; (   4) substantial


evidence supported most of the trial court' s findings of fact in the relocation order and the

unsupported findings do not warrant reversal of the trial court' s visitation order; and ( 5) the trial

court did not abuse its discretion when it limited James' s visitation with the children and


required that visits be supervised because the trial court' s findings amply support its conclusions

that James had abandoned the children and that he and the children did not have an emotional

bond.


                                               ADDITIONAL FACTS


Dissolution


          In September 2007, Alexandra obtained a default dissolution order, child support order,


 and parenting plan. At that time, the children were four years old and 15 months old. The trial

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No. 42758 -3 -II, consolidated with No. 43518 -7 -II


court concluded that James' s visitation should be limited because he had a substance abuse

problem. The parenting plan gave custody to Alexandra and allowed James to have supervised

visitation for up to six hours per week or, if James moved out of state, one supervised visitation

per month at the children' s primary residence.

       At the time the default orders were entered James had moved to Maine. In November

                                                                                                         Jeffrey4

2007, James   moved   back to Washington   and   lived   with   Alexandra' s   parents,   Sherry   and




Sneller. During that time, the parties did not follow the parenting plan. James regularly watched

the children at Alexandra' s house while she was at the gym or at school and at the Snellers'

house, sometimes unsupervised.


        In May 2008, James moved back to Maine. At the time of the move, the children were

four and one -half and two years old. James did not see the children between May 2008 and

August 2009.


Alexandra' s Relocation to Spain


        In August 2009, Alexandra moved to Spain with the children for a study abroad program.

Before the move Alexandra informed James and at first he did not oppose it For the next

several years, James had limited Internet contact with Alexandra and the children. Although


Alexandra offered to set up times for the children to speak with James via Skype while in Spain,

James did not contact Alexandra for the purpose of talking to the children. James also did not

come to Spain to visit the children. Alexandra and the children returned to the United States in

August and November of 2010, but she did not notify James of their return on either occasion.




4 Because the Snellers share the same last name, we refer to them by their first names for clarity.
We intend no disrespect.
                                                    10
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



        Alexandra' s parents disapproved of Alexandra' s decision to remain in Spain with the


children. Jeffrey sent e -mails to Alexandra and her fiance threatening legal action if they did not

comply with his demand that the children attend an international school in Spain or return to

Washington to live with the Snellers.


Objection to Relocation


        In May 2011, the trial court granted Alexandra' s motion for an order permitting her to

permanently relocate to Spain and for an order waiving notice requirements for relocation. In

June 2011, James moved for reconsideration of the trial court' s order waiving notice

requirements, objected to the relocation, moved for a temporary restraining order preventing

relocation, and filed a motion for contempt against Alexandra for failing to comply with the

parenting plan' s notice requirements. He asked the trial court to order that Alexandra return the

children to Washington immediately and for Alexandra' s parents to take temporary custody of

the children pending an investigation by a GAL to investigate sexual abuse and medical neglect

allegations made by Alexandra' s parents and brother. He further proposed a parenting plan

giving custody to him or a third - arty custodian of his choosing, specifying Alexandra' s parents,
                                 p

stating that the limitation on Alexandra' s residential time was justified by concerns for physical,

sexual, or emotional abuse of the children while living with her.

        In declarations in support of James' s motions, James, Sherry, and Jeffrey all expressed

concerns regarding potential sexual contact between the children and Gonzalez and his children.

They   also expressed concerns about   the   children' s   health   care.   Sherry stated that the parties' son

suffers from a chronic skin condition that was not being properly treated and that their daughter

had had ring worm that Alexandra had refused to treat with appropriate medicine.



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No. 42758 -3 -II, consolidated with No. 43518 -7 -II



       Regarding the sexual abuse, Sherry stated that the parties' daughter told her that she had

been forced to expose herself to Alexandra' s boyfriend, and she was forced to take baths with his


two boys, that one of the boys had pulled her pants down in front of visiting guests. In her

response, Alexandra explained the allegations of sexual abuse, stating that the children were

playing at the beach one day and had taken a shower together, but that it had not happened since

that date. She further explained that her boyfriend' s sons were ages eight and five, almost the

exact same ages as her children.


        James also stated that he was concerned about the children living outside the United

States because he did not have the means to travel outside the country to see them and because

he had been unable to see the children when they returned to the United States because

Alexandra failed to notify him when they returned. Alexandra responded that it was no more

onerous for James to visit the children in Spain than it would have been for him to travel from

Maine to visit them in Washington.


           At the hearing on James' s motions, James waived notice of relocation. As to his

remaining claims the trial court ( 1)      allowed   Alexandra' s   relocation to    Spain pending trial, (2)


issued a temporary order stating that the children would remain with the mother pending trial and

that the   original   2007 parenting   plan would remain     in full force   and effect, ( 3)   concluded that


James had no standing to request that custody of the children go to their grandparents under

chapters    26. 09   and   26. 10 RCW, found that the   allegations of abuse were made          in " hindsight ", (5)


found that all parties knew that Alexandra was in Spain with the children since 2009 and that


litigation began two years later when Alexandra' s parents wanted her to return to the United

States, and ( 6) denied James' s request for a GAL without prejudice. James did not seek

reconsideration of these rulings and does not challenge them on appeal.

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No. 42758 -3 -II, consolidated with No. 43518 -7 -II


Petition for Modification


         In September 2011, James petitioned for modification of the 2007 parenting plan. He

claimed that there was a substantial change in circumstances because of the children' s relocation


to Spain to live with Alexandra' s boyfriend and his children, James' s relocation to Maine,

Alexandra' s failure to address the children' s medical needs and allegations of sexual abuse,


James' s sobriety for the past two years, and Alexandra' s denial of contact with the children since

2008. He also argued that the parenting plan was subject to modification because it was entered

by default and therefore that a lesser showing of changed circumstances was required for

modification. In support of the motion, James submitted the same evidence that was before the


court for his previous motions objecting to the relocation.

         James subsequently moved for an order finding adequate cause to proceed on his petition

for modifying the parenting plan. He again asked the trial court to appoint a GAL to investigate

and make recommendations for the new parenting plan and asked that the children be brought to

Washington for observation by the GAL. He also moved for an order clarifying the trial court' s

temporary order leaving the original parenting plan in full force and effect because that plan

required visits to be held in Washington when neither party lived there and because it did not set

up any conditions on or requirements for Skype calls.

         Alexandra responded that James' s motion was duplicative of his motions three months


earlier and that he was requesting the same relief. Therefore, she requested attorney fees " for

having   to   go   through this   frivolous proceeding   a second   time."   CP   at   381.   Alexandra also


informed the court that since its decision on James' s objection to relocation and entry of its

temporary order, her parents had attempted to have her and the children deported from Spain and

successfully persuaded the Spanish immigration authorities to deny their visas.

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No. 42758 -3 - II, consolidated with No. 43518 -7 -II


        The trial court ruled that there was no adequate cause for a major modification of the


parenting plan and that additional concerns regarding minor modifications would be addressed at

the relocation hearing. The trial court declined to clarify its prior order, denied the motion to

appoint a GAL, and granted Alexandra' s request for attorney fees. The trial court subsequently

set a trial date for the relocation trial.


Relocation Trial


        At the time of the relocation trial in March 2012, James rescinded his objection to


relocation and instead proposed a modified parenting plan. The proposed parenting plan

provided that he would initially have six consecutive days of residential time with the children in

Spain. The time then would progressively increase over time, resulting in three one -week blocks

plus one six -
             week block per year of residential time and one weekend per month of visitation by

2014.


        The trial court rejected James' s parenting plan. The trial court' s final parenting plan gave

Alexandra full residential time with the children but permitted James to have supervised

Visitation in Spain for a minimum of one and one--halfhours per day over a period of six

consecutive days every three months. The trial court found that James' s residential time with the

children   should be limited    under   RCW 26. 09. 191 because   of "[w] illful   abandonment that


continue[ d] for an extended period of time or substantial refusal to perform parenting functions"

and that James' s involvement with the children may have an adverse effect on the children' s best

interests because   of "[   t] he absence or substantial impairment of emotional ties between the father

and children."    CP at 709. The order allowed James to have e -mail contact with the children and


 Skype or telephone contact with the children once per week.




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No. 42758 -3 -II, consolidated with No. 43518 -7 -II


          James appeals ( 1) the trial court' s October 2011 order denying James' s proposed

modification of the parenting plan, denying appointment of a GAL, and denying clarification of

its   prior order; (   2) the trial court' s order of attorney fees to Alexandra; and ( 3) the trial court' s

modified parenting plan.

                                               ANALYSIS


A.        No ADEQUATE CAUSE FOR MODIFICATION

           James argues that the trial court abused its discretion when it found that there was not


adequate cause for a hearing on his motion for a major modification of the 2007 default

parenting plan. We disagree.

           1.     Statutory Process for Modification

           The court' s primary concern in establishing parenting plans is the best interests of the

children. RCW 26. 09. 002; In re Marriage ofStern, 57 Wn. App. 707, 712, 789 P.2d 807 ( 1990).

The legislature has recognized that the child' s best interests are normally served " when the

existing pattern of interaction between a parent and child is altered only to the extent necessitated

by the changed relationship of the parents or as required to protect the child from physical;
mental, or emotional         harm."    RCW 26. 09. 002. Therefore, because changes in custody are

viewed as "      highly   disruptive for the   children,"   there is a " strong presumption in favor of

custodial       continuity   and against modification."      Stern, 57 Wn. App. at 712.

           There is a two -step process for modifying a parenting plan. In re Marriage ofZigler, 154
Wn.     App.     803, 809, 226 P. 3d 202 ( 2016). First, RCW 26. 09.270 provides:


           A party seeking a temporary custody order or a temporary parenting plan or
           modification of a custody decree or parenting plan shall submit together with his
            or her motion, an affidavit setting forth facts supporting the requested order or
            modification and shall give notice, together with a copy of his or her affidavit, to
            other parties     to the   proceedings,   who may     file opposing   affidavits.   The court


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         shall deny the motion unless it finds that adequate cause for hearing the motion is
         established by the affidavits, in which case it shall set a date for hearing on an
         order to show cause why the requested order or modification should not be
         granted.




Under this statute, the party moving to modify a parenting plan must submit an affidavit showing

 adequate cause" for modification. Zigler, 154 Wn. App. at 809. The trial court will allow a

hearing on the motion only if the affidavit establishes adequate cause. RCW 26. 09.270; In re

Custody   of T.L.,   165 Wn. App. 268, 275, 268 P. 3d 963 ( 2011).

          The primary purpose of the threshold adequate cause requirement is to prevent movants

from   harassing    nonmovants      by   obtaining   a useless   hearing." In re Marriage ofAdler, 131 Wn.

App.   717, 724, 129 P. 3d 293 ( 2006). Adequate cause requires more than prima facie allegations


that could support inferences that would establish grounds to modify the parenting plan. Grieco

v.   Wilson, 144 Wn.      App.    865, 875, 184 P. 3d 668 ( 2008),      aff'd sub nom. In re Custody of

E.A. T. W., 168 Wn.2d 335, 227 P. 3d 1284 ( 2010). At a minimum, adequate cause means


evidence sufficient to support a finding on each fact the moving party must prove to modify the

            plan.    In   re   Marriage of Lemke, 120 Wn.        App.   536, 540, 85 P. 3d 966 ( 2004). The
parenting


information supporting adequate cause should be something not considered in the original

parenting plan. Zigler, 154 Wn. App. at 809.

          Second, if the moving party establishes adequate cause and the court holds a full hearing,
 RCW 26. 09. 260( 1) provides:


          Except     as   otherwise   provided   in   subsections (   4), ( 5), (   6), ( 8),   and (   10) of this

          section, 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.


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Under this statute, the trial court may,modify the existing parenting plan only if it finds based on

new or previously unknown facts that there has been a substantial change in the circumstances of

the child or the nonmoving parry and that the modification is in the child' s best interest and

necessary to       serve      the   best interests     of   the   child.   RCW 26. 09. 260( 1);      Zigler, 154 Wn. App. at

809; George        v.   Helliar, 62 Wn.            App.   378, 382 -83, 814 P. 2d 238 ( 1991).            The purpose of these


                                                          making it             difficult to               the   status quo."   In re
procedures      is to " protect stability            by               more                     challenge




                F.,
Parentage of C.M.                       Wn.2d               314 P. 3d 1109, 1113 ( 2013).


           Further, RCW 26. 09. 260( 2) provides that the trial court must retain the residential


schedule established in the original parenting plan except under four specific circumstances.

One   of   those   circumstances          is   a    finding that "[ t]he 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."   RCW 26. 09. 260( 2)( c).


 Failure by the trial court to make findings that reflect the application of each relevant factor is
error."    Stern, 57 Wn. App. at 711.

           2.      Exception for Default Parenting Plans

           An exception to the requirement that a moving party show a substantial change in

 circumstances applies to parenting plans entered by default, for which no showing of changed

 circumstances          is   required.   In    re   Rankin, 76 Wn. 2d 533, 537, 458 P. 2d 176 ( 1969). The court in


 Rankin reasoned that a trial court entering a custody order by default has not had the chance to

 observe opposing witnesses and the trial court is unable to properly exercise its discretion in

 weighing competing evidence in the best interests of the child. 76 Wn.2d at 536 -37. Therefore,

 the court held that if a parenting plan is entered by default, the trial court may consider facts


                                                                           17
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



existing at the time the original dissolution decree was entered and the moving party need not

necessarily   show changed circumstances.           5 Rankin, 76 Wn.2d at 538.

       Relying on Rankin, James argues that because the parenting plan was entered by default,

 a lesser showing of a change of circumstances" should have been required to satisfy the first

step in the analysis for a parenting plan modification, adequate cause. Br. of Appellant at 18 -19.

James misreads Rankin. Rankin holds that in the context of default parenting plans, parties

seeking modification may show additional facts existing at the time the parenting plan was

entered to justify modification and are not limited to showing changed circumstances arising

only after the initial parenting plan was entered. 76 Wn.2d at 537 -38; cf.In re Parentage of

Jannot, 110 Wn.     App.    16, 25, 37 P. 3d 1265 ( 2002) ( "[ T]he       information considered in deciding

whether a hearing is warranted should be something that was not considered in the original

parenting   plan. "),   aff'd, 149 Wn.2d 123, 65 P. 3d 664 ( 2003).         Therefore, when a court enters a


default parenting plan, the party seeking to modify the plan may do so based on a showing of

changed circumstances under RCW 26. 09.260( 1) or based on facts existing when the original

parenting plan. was entered that the trial court did not consider. Rankin, 76 Wn.2d at 537 -38.

        Here, James does not argue that the facts did not support entry of the original 2007

parenting plan. Rather, he bases his arguments entirely on changed circumstances. Accordingly,


  Alexandra argues that when the legislature enacted RCW 26. 09. 260, it eliminated Rankin' s rule
for default   orders    because the   statute   includes   no exception   for default   orders.   She further notes
that there must be no exception to following the rules in the statute because it is an abuse of
discretion for the trial court to grant a motion to modify a parenting plan unless the motion
complies with the requirements of RCW 26. 09. 260. See In re Custody ofHalls, 126 Wn. App.
599, 606, 109 P. 3d 15 ( 2005).        However, "[ a] bsent an indication that the Legislature intended to
overrule the common law, new legislation will be presumed to be consistent with prior judicial
decisions."In re Marriage of Williams, 115 Wn.2d 202, 208, 796 P.2d 421 ( 1990).
Accordingly, we interpret RCW 26.09. 260( 1) consistently with the rule in Rankin that no
showing of changed circumstances is required for default orders.

                                                            W.
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


he was required to present affidavits containing sufficient evidence to support a finding that there

has been a substantial change in circumstances and that modification is in the children' s best

interests. RCW 26. 09. 260( 1);            Zigler, 154 Wn. App. at 809.

          3.          No Adequate Cause


          The trial court ruled that no hearing was required on James' s petition to modify because

he did not show adequate cause. We review a trial court' s determination of adequate cause for a

proposed parenting plan modification for abuse of discretion. In re Parentage ofdannot, 149

Wn.2d at 128. A trial court abuses its discretion when its decision is manifestly unreasonable,

based on untenable grounds, or made for untenable reasons. Littlefield, 133 Wn.2d at 46- 47.

          James argues that the following facts arising after entry of the default parenting plan

support modification            for   changed circumstances: (          1) allegations regarding the children' s sexual

contact, ( 2)       his   relocation   to Maine, ( 3) his sobriety, ( 4) his        stable   home life   and employment, ( 5)




the   need     to   change   transportation provisions, ( 6)        the need to address the location of visits, and ( 7)

the   need     to modify the     supervision requirement.          6 We disagree.

          First, the trial court noted that the case already was set for hearing on Alexandra' s

relocation and that this hearing could result in minor modifications to the parenting plan based

on the relocation. Therefore, there was no adequate cause to modify the parenting plan before

the relocation hearing based on the need to change transportation provisions or the need to

 address the location of visits.




 6
     In his motion to modify the parenting plan, James also claimed that the following changed
 circumstances supported modification: (               1) Alexandra'        s relocation     to Spain, ( 2) Alexandra' s new

 residence      in the home      of    her boyfriend   and   his   children, ( 3)   Alexandra' s failure to attend to the
 children' s medical needs, and ( 4) Alexandra' s interference with James' s attempts to contact the
 children. However, because James does not raise these arguments on appeal, we do not address
 them.
                                                                   19
No. 42758 -3 - II, consolidated with No. 43518 -7 -II



          Second, RCW 26. 09. 260( 1) expressly states that the only relevant changes of

circumstances are those involving the child or the nonmoving parent. Therefore, in addressing

adequate cause the trial court cannot consider the moving party' s changed circumstances.

George, 62 Wn.      App.   at   383.    Accordingly, James' s relocation, sobriety and stable home life

were not factors supporting a substantial change in circumstances. And because James' s request

to modify the requirement that his visits be supervised was based primarily on changes in his

circumstances, there was no adequate cause to modify that requirement.

          Finally, with regard to the sexual contact allegations, the trial court already had found in

its   previous order   that these     allegations were made    in " hindsight ". Report of Proceedings ( RP)


 June 24, 2011) at 36. The court noted that it was only after the litigation started that

Alexandra' s family made the allegations even though they were aware of the circumstances far

earlier. And Alexandra stated in her declaration that the litigation began because she refused to

return to the United States, contrary to her parents' wishes. We presume that the trial court

weighed this evidence and found Alexandra' s explanation for the allegations more credible.

Snyder    v.   Haynes, 152 Wn.       App.   774, 779, 217 P. 3d 787 ( 2009).   Accordingly, the trial could

have reasonably concluded that these allegations were merely unsubstantiated allegations of

abuse and were therefore insufficient to justify an evidentiary hearing. Grieco, 144 Wn. App. at

875.


          James nevertheless argues that the trial court' s adequate cause decision should be

reversed because the trial court failed to make specific findings on the relevant criteria in RCW


26. 09. 260, relying on In re Marriage ofShryock, 76 Wn. App. 848, 852, 888 P. 2d 750 ( 1995)

and    Stern, 57 Wn.    App.    at   711.   But although Shryock and Stern both state the requirement for


specific findings, both cases related to findings made after evidentiary hearings on modification,

                                                          20
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


not   to   adequate cause   determinations.      And James has submitted no authority that specific

findings are required for an adequate cause determination.


            We hold that the trial court did not abuse its discretion in finding no adequate cause to

hold a hearing on James' s petition to modify the parenting plan. Accordingly, we affirm the trial

court' s dismissal of James' s modification petition.


B.          APPOINTMENT OF GAL


            James argues that the trial court abused its discretion by denying his motion to appoint a

GAL. We disagree.


            RCW 26. 09.220( 1) authorizes a court, in considering parenting arrangements, to order an

investigation and report or to appoint a GAL. The purpose of appointing a GAL is to ensure that

the children' s best interests are promoted through an independent investigation and

recommendation. In re Marriage of Waggener, 13 Wn. App. 911, 917, 538 P.2d 845 ( 1975).

We    review    the decision   whether   to   appoint   a GAL for   abuse of   discretion. Vo v. Pham, 81 Wn.


App. 781, 784, 916 P. 2d 462 ( 1996).

            James made requests at two different times in this litigation to have a GAL appointed. - -

First, he requested that the trial court appoint a GAL in his motion for reconsideration of the

order waiving notice requirements, motion to show cause for contempt, and motion for a

temporary order restraining relocation. The trial court denied the motion without prejudice,

stating that the matter could be reconsidered if James could " figure out some way to do it in
 Spain." RP ( June 24, 2011)       at   37. Second, James requested a GAL appointment in conjunction


with his motion for a finding of adequate cause and clarification of the trial court' s temporary

 order. He asked the trial court for an order " requiring that the children be brought to Washington



                                                           21
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


for the GAL to interview them   and observe   how they interact   with   both   parents."   CP at 362.


The trial court denied the motion.


       James argues that the trial court should have granted his motions to have a GAL


appointed because the GAL could have provided information regarding the allegations of sexual

contact. But the trial court did not abuse its discretion in finding that the sexual contact

allegations were made only after Alexandra decided to remain in Spain contrary to her parents'

wishes. The trial court concluded that these allegations did not require the appointment of a


GAL, particularly when there was no practical way for the GAL to have face to face contact with

the children. Accordingly, we hold that the trial court did not abuse its discretion in declining to

appoint a GAL on this basis.


        James also argues that the GAL could have investigated the children' s relationship with

him and Alexandra' s alleged interference with their communication. But Alexandra stated that


as a result of James' s absence from the children' s lives, they do not know who he is. After

James relocated to Maine, he did not see the children again for over four years. And as to their


ability to communicate with him, Alexandra presented evidence of Skype calls James claimed'

that he missed. James fails to show how the trial court abused its discretion in ruling that no

additional GAL investigation was warranted given this evidence.


        Moreover, the trial court' s original denial of James' s motion for a GAL appointment


stated that he could renew the motion if he could find a way to have the GAL in Spain. His

renewed motion for appointment of a GAL requested that the children meet with a GAL in

Washington, contrary to the trial court' s direction. James stated that Alexandra' s parents had

agreed to fund the children' s visit to Washington to meet with the GAL and that doing so would

be more cost -effective than sending a GAL to Spain. However, the trial court reasonably could

                                                  22
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


have concluded that given the minimal utility of the proposed GAL investigation and the

disruptiveness of returning the children to Washington, James' s request for a GAL investigation

requiring the children to fly to Washington was inappropriate. Accordingly, we hold that the
trial court did not abuse its discretion when it denied James' s second request for appointment of

a GAL.


C.         ATTORNEY FEES FOR SUBSEQUENT MOTIONS


           James argues that the trial court abused its discretion when it awarded attorney fees to

Alexandra for responding to James' s adequate cause motion, motion to clarify its temporary

order, and motion to appoint a GAL because the trial court failed to make written findings as

required by RCW 4. 84. 185. Because the trial court failed to enter any written findings or
otherwise provide a record for our review, we remand for reconsideration of the issue and entry

of findings, if appropriate.


           We review a trial court' s decision to grant or deny a statutory attorney fee award for

abuse of discretion. In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P. 3d 1101 ( 2011).

     T] rial courts must exercise their discretion on articulable grounds, making an adequate record

so   the   appellate court can review a         fee   award."   Just Dirt, Inc.   v.   Knight   Excavating, Inc.,   138


Wn.     App.   409, 415, 157 P. 3d 431 ( 2007). Therefore, " the trial court must enter findings of fact


and conclusions of       law to   support an      attorney fee    award."    Just Dirt, 138 Wn. App. at 415.

     A] bsence of an adequate record upon which to review a fee award will result in a remand of

the    award   to the trial   court   to   develop    such a record."    Mahler v. Szucs, 135 Wn.2d 398, 435, 957


 P. 2d 632 ( 1998),    overruled      in part   on other grounds        by Matsyuk v.    State Farm Fire & Cas. Co.,


 173 Wn.2d 643, 272 P. 3d 802 ( 2012).




                                                                23
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



        Alexandra requested fees under RCW 4. 84. 185, which allows a court to award attorney

fees to the prevailing party in an action if the action as a whole was " frivolous and advanced

without reasonable cause."        Bldg. Indus. Ass' n of Wash. v. McCarthy, 152 Wn. App. 720, 745 -46,

218 P. 3d 196 ( 2009).       RCW 4. 84. 185 expressly provides that in order to support an award under

the statute, the trial court must enter written findings that the action is frivolous. Haysy v. Flynn,

88 Wn.      App.   514, 521, 945 P. 2d 221 ( 1997).         A lawsuit is frivolous when it cannot be supported


by any rational argument on the law or facts. Curhan v. Chelan County, 156 Wn. App. 30, 37,
230 P. 3d 1083 ( 2010).


         Here, the trial court failed to make any written findings supporting its fee award. Instead,

the trial   court' s order   awarding fees merely        stated, "   Attorney' s fees will be awarded to the

mother in an amount to be set at a future hearing or upon agreed order. The fee award is against

the father."    CP   at   524. In its   oral   ruling, the trial   court stated, "   I am going to order attorney fees

in this case. I don' t think this motion for modification was brought on grounds that present

issues of merit for the court to look at, and so I will grant an attorney fees award against

 James]        RP ( Nov. 7, 2011) at 22. The trial court' s summary conclusion in its oral ruling that

the petition for modification was meritless is insufficient for us to determine whether the trial

court abused its discretion in awarding attorney fees under RCW 4. 84. 185.

            Moreover, in order for fees to be awarded under RCW 4. 84. 185, the action as a whole


must be frivolous. McCarthy, 152 Wn. App. at 745 -46. Here, even after examining the trial

court' s oral ruling, it is only clear that the trial court thought that the petition for modification

was frivolous. The record does not show whether the trial court also considered whether James' s

 second request for a GAL and the motion to clarify the temporary order also were frivolous.

 Therefore,    we remand with       directions to     reconsider     the basis for the    award under   RCW 4. 84. 185
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


and to enter appropriate findings if the award is confirmed on that basis. Mahler, 135 Wn.2d at

435.


D.        TRIAL FINDINGS OF FACT


          James challenges certain findings of fact the trial court entered after trial. He argues that


because these findings are erroneous, they cannot support the trial court' s modification of the

parenting   plan ( discussed    below).    We hold that only two findings are erroneous and that those

findings do not warrant reversal of the court' s modification order.


          We review challenges to the trial court' s factual findings for substantial evidence. In re

Marriage offahey, 164 Wn.           App.   42, 55, 262 P. 3d 128 ( 2011), review denied, 173 Wn.2d 1019


 2012).    Substantial evidence exists if the record contains sufficient evidence to persuade a fair -

minded, rational person of       the   finding' s   truth.   Fahey,   164 Wn.    App.   at   55.   The party

challenging a finding bears the burden of showing that it is not supported by the record.

Standing Rock Homeowners Assn v. Misich, 106 Wn. App. 231, 243, 23 P. 3d 520 ( 2001).

Unchallenged findings are verities on appeal, and challenged findings are also binding on appeal

if they   are supported   by   substantial evidence.         Robel   v.   Roundup Corp., 148 Wn.2d 35, 42, 59

P. 3d 611 ( 2002);   Standing Rock, 106 Wn. App. at 243.

          Evidence may be substantial even if there are other reasonable interpretations of the

evidence.    Sherrell v. Selfors, 73 Wn. App. 596, 600 - 01, 871 P. 2d              168 ( 1994). " We defer to the


trial court' s determinations on the persuasiveness of the evidence, witness credibility, and

conflicting   testimony."      Snyder, 152 Wn. App. at 779. Therefore, we will not disturb a trial

court' s finding of fact if substantial, though conflicting, evidence supports the finding.

Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P. 3d 162 ( 2010).



                                                              25
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


          1.      No Contact with Children Since 2008


          James challenges the trial court' s findings regarding his contact with the children after he

returned       to Maine    after   living   with   Alexandra' s         parents   in       2008.
                                                                                       mid -             First, he challenges the


finding    that " `[ t] he father     has   not seen     the   children since       May       2008.' "     Br. of Appellant at 14


 quoting CP        at   719). But,James testified at trial that he had not had in- person contact with the


children since mid - 008, and Alexandra' s parents confirmed this. Accordingly, the finding is
                   2

supported by substantial evidence.

           Second, James           challenges   the trial      court' s   finding      that " `[   James] has not been in the


children' s     lives for    almost   four   years.' "     Br.    of   Appellant       at   14 ( quoting CP      at   728). In support


of his challenge, James notes that he testified that he had regular telephone contact with the

children after he left Washington in 2008 until the children left for Spain with Alexandra in

2009. He also says that Alexandra admitted this fact in her testimony. However, the portion of

her testimony James cites states that he missed calls with the children in 2009, not that there was

actual contact. And although according to his testimony, James may have had telephone contact

with the children between 2008 and 2009, the trial court could have. reasonably concluded that

James' s lack of in- person contact with the children and only limited telephone contact with them

amounted        to James     having " not been       in the      children' s    lives." CP         at   728.   This is especially true

in light   of    the trial   court' s unchallenged        finding that in March               2010, "[ James] admits that [ his


daughter] does          not remember        him    now and [      his   son]   does     not   know      who    he is." CP   at   721.   This


 finding is     supported     by    substantial evidence.
No. 42758 -3 - II, consolidated with No. 43518 -7 -II




           2.    Unsupervised Contact with Children


           James challenges the trial court' s following findings relating to James' s minimal

unsupervised contact with the children:


           The children have never spen[ t] unsupervised time with [ James] after September
           2007, or if they have, it was very brief.
           The father did     not   take the   children     for   overnight   trips   or   to do   other   things ...   in
           an unsupervised setting.


CP at 719.


           He argues that there was " unrebutted evidence" that his contact with the children " was

not   actually   supervised."       Br. of Appellant at 14. The record supports James' s contention that


some of his contact with the children while he was living at the Snellers' home in Washington

between November 2007 and May of 2008 was unsupervised.' He watched the children at

Alexandra' s house while she was at the gym or at school three days a week for approximately

one and one -half hours at a time and also at the Snellers' house, sometimes unsupervised. Four

and one -half hours of unsupervised time per week for six months was more than " very brief."

CP at 719. Accordingly, we hold that the finding is not supported by substantial evidence.

However, there is no evidence that James took the children " for overnight trips" or that they did

 other things" in an unsupervised setting, and therefore substantial evidence supports this

finding.

           3.       Skype Calls


           James assigns error to the trial court' s finding that in 2010 " there were two Skype visits

 between James and the children] set up by [ Sherry], but no testimony as to how those went."

Br.   of   Appellant   at   14 ( quoting CP    at   723).   In support of this challenge, he points to his own




                                                                  27
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



testimony and that of Sherry describing a 2010 Skype call with the children. Accordingly, this

finding was not supported by substantial evidence.

         4.          E -mails with James' s Daughter


         James assigns error to the trial court' s finding that exhibit 35, which consisted of "e -mails

between [ his daughter]         and   James    over a period of         two days," showed that his daughter " was the


one   that initiated the e- mails,         and not   the   other   way   around."       CP at 726. However, the e -mails


in exhibit 35 support the trial court' s finding. James nevertheless argues that the trial court

ignored several e -mails James sent in 2009 to which his daughter did not respond and that the


trial court ignored James' s testimony regarding the e- mails. But because exhibit 35 supports the

trial court' s finding and we do not evaluate conflicting evidence, we reject James' s argument.

Merriman, 168 Wn.2d at 631; Snyder, 152 Wn. App. at 779.

          5.         Efforts To Contact Children


          James      challenges   the trial    court' s    findings that "[    n] o attempts [ we] re made by [ James] to

contact [ Alexandra]       to   set   up Skype    or [ p]   hone   contact" and "[       f]rom March 2008 to March 2009


 James] made]          no attempt     to   contact   the children       by   phone, card or other means.          CP at 722. In


support of     his   challenge    to these findings, James          points     to the   following   evidence: (   1) e -mails he


sent to Sherry in 2010 and 2011, asking her to set up time with Alexandra for James to speak to

the   children; (    2) an e -mail he wrote to Sherry in 2010 saying that he had talked to the children;

and ( 3) an e -mail he sent to Alexandra in August 2009 stating that he had attempted to call her

the previous day.

          The e -mails were all dated after March 2009. Therefore, they do not contradict the

finding that he made no attempt to contact the children between March 2008 and March 2009,

and that finding is supported by substantial evidence. And apart from James' s e -mail to

                                                                   28
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



Alexandra, the evidence shows that James attempted to contact only Alexandra's family in order

to set up time to talk to the children, not Alexandra herself. Therefore, the trial court' s finding

that he made no attempts to contact Alexandra directly is supported by substantial evidence.7
        6.   Effect of Erroneous Findings


        We hold that the trial court' s finding that James had no or very limited unsupervised time

with the children after September 2007 and the finding that there was no testimony regarding the

nature of two 2010 Skype calls are not supported by substantial evidence. However, even

without these two findings the findings of fact were more than sufficient to support the trial


court' s rulings. James' s unsupervised time with the children occurred between November 2007

and April or May of 2008, four years before the relocation trial. And James does not argue that

what was actually said in the in two Skype calls was significant to the trial court' s other

findings.


E.      JAMES' S RESIDENTIAL TIME WITH CHILDREN


        James argues that the trial court abused its discretion by imposing limitations on his

residential time with the children to a minimum of 36 hours per year in Spain and by requiring

that those visits be supervised. We disagree.


        We first note that James rescinded his objection to relocation at trial and consequently

does not appeal the trial court' s decision permitting relocation. Rather, he challenges the

modified parenting plan resulting from the relocation order.

        We review rulings concerning parenting plans for abuse of discretion. In re Marriage of

Christel, 101 Wn.   App.   13, 20 -21, 1 P. 3d 600 ( 2000). Such rulings will seldom be changed




  James assigns error to a number of the trial court' s other findings, but does not provide
argument supporting these assignments of error in his brief. Accordingly, we decline to address
them. RAP 10. 3( a)( 6).
                                                   29
No. 42758 -3 - II, consolidated with No. 43518 -7 -II


upon appeal because the emotional and financial interests affected by such decisions are best

served by finality. See Jannot, 149 Wn.2d at 127.

        A trial court has authority to impose limitations on visitation in a parenting plan under

RCW 26. 09. 191( 2). Here, the trial court awarded Alexandra full residential time with the


children except that James was permitted to have supervised visitation with the children in Spain

for a minimum of one and one — hours per day over a period of six consecutive days every
                             half

three months. The trial court concluded that limitation on James' s visitation was proper under

RCW 26. 09. 191( 2)(       a)   for "[ w]illful abandonment that continues for an extended period of time


or substantial refusal      to   perform   parenting functions."            CP at 720.


        In support of this conclusion, the court made the following findings:

        In   a   March 17, 2010       email [   James]    says   he     can ...   go to Spain to see the children,
        but there was absolutely no follow up to that or no plans made or no further
        inquiries about what time [ Alexandra] might be [ o] n Bainbridge Island.
        Marc[ h] 23, 2010 there is          a series of [S]      kype     calls set   up   and   in the   email, [   James]
        admits that [ his daughter] does not remember him now and [ his son] does not
        know who he is....
                 T] he summer of 2010 goes by without further contact.

        No       attempts   are    made    by [   James]    to contact [ Alexandra] to set up Skype or
         p] hone contact even though [ Alexandra] has offered as much....
        From March 2008 to March 2009 [ James]                              makes no attempt to contact the

        children by phone, card or other means, and there was a failure on his part to
        maintain and build emotional ties where the children were involved....
         James]  was not maintaining contact with the children even though he had
        avenues to do so, and then made it exclusively through [ Sherry]....
         James]' s failure to maintain contact caused emotional harm to [ his daughter]... .
         These      are   formative   years     for the   children,      particularly for [ the     son],    because ...
        over half of his life he' s not seen his father, and it is significant that there were
        opportunities ... for [James] and he did not follow through on them.


         James] was not trying to further his emotional bonds to his children, and he did
        nothing to nurture that relationship.

        It is astounding that [ James]              made no effort to see the children in Spain in
        December 2011, or any attempt,to see the children in Spain during 2011 as trial

                                                                 ffil
No. 42758 -3 -II, consolidated with No. 43518 -7 -II



         was   pending in this      Court orders could have easily been fashioned and
                                          case.

         probably would have been agreed.

         Jeffery testified that he would pay for [ James] to go to Spain, and [ Alexandra]
         testified that she         had    made     an   offer   to have [ James]   see the children in Spain

         during December 2011 but instead he came to Bainbridge Island to meet with his
         attorney and likely prepare for litigation.
         There has been willful abandonment by [                        James]   of his relationship with his
         children ...       that continued for an extended period of time, and there have been
         minimal ...         attempts by [ James] to maintain any type of relationship with his
         children.




CP at 721 -24. These extensive findings clearly support the trial court' s conclusion that James

willfully abandoned his children and refused to perform parenting functions. Accordingly, we

hold that the trial court did not abuse its discretion when it imposed limitations on James' s

visitation for this reason.


         The trial court also concluded that residential time should be limited under RCW

26. 09. 191( 2)(   a)   because   of "[    t]he absence or substantial impairment of emotional ties between

the   parent and    the   child."   CP     at   725 ( boldface    omitted).   In support of this conclusion, the trial


court made the following findings:

          James] has not seen either child in person since his relocation to Maine in May
         2008, nearly four years ago.

         For nearly half of [the son' s] life he has not had physical contact with his father,
          and has had no cards or pictures....
           The daughter] has had one email session over two days with her father and that
          is the only contact she has had.

          It' s clear that [ James] hardly knows [ his son].
          The contact between [ James] and [ his daughter] has been sporadic and has had no
          real substance to it.


CP at 725 -28. Again, these findings amply support the trial court' s finding that James and the

children lacked any meaningful emotional ties and supported the limitations. on James' s

visitation.



                                                                   31
No. 42758 -3 -II, consolidated with No. 43518 -7 -II


           James nevertheless argues that because the trial court' s order so significantly limits his

time with the children, it was " not adequate to satisfy the basic purpose of the parenting act —

fostering    the relationship between      parent and child."      Br. of Appellant at 32. In support of his


contention;     James   quotes   the   following   portion of   RCW 26. 09. 002, " ` The state recognizes the


fundamental importance of the parent -child relationship to the welfare of the child, and that the

relationship between the child and each parent should be fostered unless inconsistent with the

child' s   best interests.' "   Br. of Appellant at 32.


           But fostering the parent -child relationship is not the only factor to be considered. RCW

26. 09. 002 further provides:


           The best interests of the child are served by a parenting arrangement that best
           maintains a child' s emotional growth, health and stability, and physical care.
           Further, the best interest of the child is ordinarily served when the existing pattern
           of interaction between a parent and child is altered only to the extent necessitated
           by the changed relationship of the parents or as required to protect the child from
           physical, mental, or emotional harm.


Here, because the children did not have a relationship with their father at the time the parenting

plan was modified, the trial court found that they needed to be protected from James because his

behavior gave the children " little to believe that a trust relationship with their father could be put

into   place at   this time."   CP at 728. And because James had had no in-person contact with the


children for four years, we hold that the trial court' s limitation on his in-person time with them


served the best interests of the children because it only minimally altered their existing pattern of

interaction.


           Moreover, although the parenting plan limits James' s visitation, James did not exercise

his visitation rights under the original parenting plan for the four years preceding trial.




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No. 42758 -3 -I1, consolidated with No. 43518 -7 -11



Accordingly, if James were to follow through with the visitation set forth in the new parenting

plan, he still would have more interaction with the children than before trial.


       Finally, James argues that the trial court erred when it required that his visitation with the

children be supervised. His only claim is that the trial court failed to enter findings supporting
this ruling, citing Shryock, 76 Wn.   App.   at   852,   and   Stern, 57 Wn.   App.   at   711. But although


both Shryock and Stern require findings supporting modification, neither case specifically

discusses supervised visitation.


        Further, the evidence supports the trial court' s ruling on supervision. The trial court' s

extensive findings regarding the absence of a relationship between James and the children and

his willful abandonment of them for four years supports the conclusion that it was not in the

children' s best interests to provide James with unsupervised visitation time.

        We hold that the trial court did not abuse its discretion when it limited James' s visitation

time and required that the visitation be supervised.


        We affirm on all issues except for the attorney fee award, for which we remand to the

trial court to reconsider that award and make findings supporting its decision to award fees, if

appropriate.




                                                          MAXA, J.
We   concur:
