                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            April 7, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 In re the Parenting and Support of:                                  No. 51956-9-II

 C.M.,

                                 Child,
                                                               UNPUBLISHED OPINION
 CASSANDRA WEISENBERGER,

                                 Appellant.

          and

 TYLER PAUL MITTGE,

                                 Respondent.



         MAXA, C.J. – Cassandra Weisenberger appeals the trial court’s order regarding the

parenting plan relating to CM, the son of Weisenberger and Tyler Mittge. The court ruled that

there was no adequate cause to schedule a hearing on Weisenberger’s motion to modify the

parenting plan, but at the same time revised certain parenting plan provisions.

         We hold that (1) the trial court applied an incorrect analysis in finding no adequate cause

for a full hearing on modifying the parenting plan and (2) the trial court erred in revising certain

parenting plan provisions because the court’s ruling represented modifications rather than

clarifications of the parenting plan. Accordingly, we reverse the trial court’s order ruling that
No. 51956-9-II


Weisenberger did not show adequate cause to modify the parenting plan and revising certain

parenting plan provisions and remand for further proceedings consistent with this opinion.

                                              FACTS

Parenting Plan

         Weisenberger and Mittge are the parents of CM. A final parenting plan for CM was

entered in Pacific County Superior Court on March 6, 2017 when CM was two years old. At the

time, Mittge had a job that required him to work out of state. His work schedule meant that he

was out of the state for weeks or months at a time.

         The parenting plan provided that CM’s primary residential placement would be with

Weisenberger. Mittge’s visitation with CM was divided into three phases based on when he was

off work. Phase 1 applied when Mittge returned to Pacific County, Phase 2 applied when he was

home for more than two weeks, and Phase 3 applied when he was home for more than four

weeks.

         The parenting plan also provided transportation arrangements. The exchange for

parenting time would take place at the “Raymond Police Station or another agreed upon

location.” Clerk’s Papers (CP) at 29. In addition, the parenting plan stated that “Lorie Mittge

shall not transport the child on pick up.” CP at 32.

Petition for Modification

         A few months after the parenting plan was entered, Mittge left his out-of-state job and

moved home to Pacific County. He started working in Aberdeen in Grays Harbor County. After

leaving his job, Mittge consistently had visitation with CM every other weekend. In early 2018,

Mittge moved to Chehalis in Lewis County




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No. 51956-9-II


        In January 2018, Weisenberger filed a petition for a “minor change” of the parenting plan

under RCW 26.09.260(5). Weisenberger also filed a motion for an adequate cause determination

on the petition to change the parenting plan.

        As grounds for the minor change, Weisenberger stated, “The situation of the child/ren, a

parent, or a non-parent custodian has changed substantially. . . . The current parenting/custody

order is difficult to follow because the parent who has less residential time with the children has

moved.” CP at 35. In the declaration attached to her petition, Weisenberger stated, “Since

leaving his previous job and moving to Lewis County, Mr. Mittge has consistently had visitation

every other weekend. . . . Because the current plan does not apply we’ve had to sort out

visitation on our own.” CP at 40. Weisenberger requested that the parenting plan be modified to

reflect the status quo.

        The trial court heard argument on whether there was adequate cause to schedule a hearing

on Weisenberger’s petition. Weisenberger argued that there had been a substantial change of

circumstances because the parenting plan was designed for Mittge’s unique work schedule, but

he no longer worked in the out-of-state job. In addition, Mittge had moved to Lewis County and

the parenting plan only addressed when Mittge was living in Pacific County. Mittge argued that

there had been no change of circumstances and the Phase 3 scenario in the parenting plan applied

because he no longer worked out of state.

        The trial court concluded that there was no adequate cause to schedule a full hearing and

denied Weisenberger’s petition to modify the parenting plan. The court stated, “I’m not going to

find adequate cause. I think he’s in Phase 3. The fact that he lives slightly outside Pacific

County doesn’t change what I see to be the intent. If he’s able to be around on a regular basis,

he’s entitled to the 50 percent [visitation].” Report of Proceedings (RP) at 29. The court also




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No. 51956-9-II


stated that he was getting a “bad impression” of both parents. RP at 44. “You were definitely

giving me the idea that you’re trying to alienate this child from this father. . . . No ifs, ands, or

buts about that. . . . So – so that’s my impression of both of you, neither are very good.” RP at

45. The court continued, “I’m a little mystified that you could reach such a good agreement to

begin with and suddenly have it deteriorate into what I can only describe in my – or think in my

mind reasonable parents would have resolved without bringing the acrimony of these kind of

things to a courtroom.” RP at 45.

        In its written order denying adequate cause, the court outlined a number of “provisions

and understandings”:

        A. At the present time we will be following Phase Three as noted in paragraph 8
        of the Plan, in spite of father’s present residence in Lewis County.
        ....

        D. Transportation shall be as follows:

           i. Shall occur at a midpoint location between the homes of the parties; presently
           at the Pe Ell Texaco Station.

           ii. Father may utilize any qualified licensed and insured driver to do the
           exchanges.

           iii. If father gives mother at least 24 hours notice, the exchange point may be
           changed to Galey’s in Raymond.

        E. For the purpose of determining which Phase of contact we are in, in the
        Parenting Plan, the terms “home” or “Pacific County” shall include any residential
        location within 85 miles of Raymond, WA.

CP at 79-80.

Motion for Reconsideration

        Weisenberger filed a motion for reconsideration. She argued that the trial court erred in

finding no adequate cause for a minor change under RCW 26.09.260(5) and improperly modified

the parenting plan.



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No. 51956-9-II


       The trial court denied Weisenberger’s motion for reconsideration. The court stated that

Weisenberger “sought a ‘minor modification’ when she was really asking for a ‘major

modification.’ ” CP at 135-36. The court ruled that Weisenberger did not qualify for a minor

change to the parenting plan under RCW 26.09.260(5) because the modification sought was for

more than 24 days and because CM no longer was residing a majority of the time with

Weisenberger.

       Weisenberger appeals the trial court’s order ruling that there was no adequate cause to

schedule a hearing on her motion to modify the parenting plan and revising certain parenting

plan provisions.

                                            ANALYSIS

A.    ADEQUATE CAUSE FOR HEARING ON MINOR MODIFICATION

       Weisenberger argues that the trial court erred when it found that there was no adequate

cause for a hearing on her petition for a minor modification of the parenting plan. We hold that

the trial court applied an incorrect analysis in finding no adequate cause.

       1.    Statutory Process for Modification

       RCW 26.09.260 addresses the grounds for modifying a parenting plan. Under RCW

26.09.260(1), the general rule is that the court will not modify a parenting plan unless the court

finds based on facts that have arisen since the parenting plan or were unknown to the court at the

time of the 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.” In addition, the court must retain the residential schedule in

the parenting plan unless one of the four factors listed in RCW 26.09.260(2) is present.




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No. 51956-9-II


       However, RCW 26.09.260(5) allows a court to adjust residential aspects of a parenting

plan through a “minor modification” in the residential schedule “upon a showing of a substantial

change in circumstances of either parent or of the child” and without considering the RCW

26.09.260(2) factors. The minor modification procedure is available only if (1) the modification

“does not change the residence the child is scheduled to reside in the majority of the time,” and

(2) at least one of three listed conditions are met. RCW 26.09.260(5). One of the conditions that

allows a minor modification is “a change of residence of the parent with whom the child does not

reside the majority of the time.” RCW 26.09.260(5)(b).

       A party seeking to modify a parenting plan must submit a motion and an affidavit setting

forth facts showing “adequate cause” for the requested modification. RCW 26.09.270. The trial

court must deny the motion without a hearing unless the affidavit establishes adequate cause to

schedule a hearing. RCW 26.09.270; see In re Marriage of MacLaren, 8 Wn. App. 2d 751, 770-

71, 440 P.3d 1055 (2019). If the court finds adequate cause, the court must schedule a hearing

on an order to show cause why the requested modification should not be granted. RCW

26.09.270.

       To show adequate cause, the petitioner must present evidence that would support a

modification under RCW 26.09.260. MacLaren, 8 Wn. App. 2d at 774. The petitioner must do

more than assert unsupported allegations that would support modification if proved. Id. at 771-

73. “[T]he moving party must set forth facts and provide supporting evidence – not self-serving

or conclusory statements – to establish adequate cause.” Id. at 774. At a minimum, “adequate

cause” requires evidence sufficient to support a finding on each fact the moving party must prove

to modify the parenting plan. Id. at 772-73.




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No. 51956-9-II


       There is a strong statutory presumption against modification of parenting plans because

custodial changes are disruptive to children. Id. at 771. Therefore, the statutory adequate cause

requirement imposes a heavy burden on the petitioner that must be satisfied before a hearing

even will be scheduled. Id.

       We review a trial court’s determination of adequate cause for a proposed parenting plan

modification for abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d

664 (2003). A trial court abuses its discretion when its decision is manifestly unreasonable or

based on untenable grounds or reasons. In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d

1041 (2017). More specifically, “the procedures and criteria set forth in RCW 26.09.260 limit

the superior court’s range of discretion.” In re Marriage of Hoseth, 115 Wn. App. 563, 569, 63

P.3d 164 (2003). Therefore, the superior court abuses its discretion if it fails to base its

modification ruling on the statutory criteria. Id.

       2.    Adequate Cause under RCW 26.09.260(5)

       Weisenberger argues that the trial court erred in ruling that there was not adequate cause

for a hearing on her petition to modify the parenting plan under RCW 26.09.260(5). We agree.

             a.   Substantial Change in Circumstances

       The threshold requirement for granting a minor modification under RCW 26.09.260(5) is

a showing of a “substantial change in circumstances of either parent or of the child.” The trial

court did not expressly address this requirement.

       There is no question that Mittge’s circumstances had changed since the parenting plan

was entered. The parenting plan was designed to account for Mittge’s long work-related

absences from his home in Pacific County, but Mittge soon left that job and moved home.

Mittge had a new job in Grays Harbor County with unknown work hours. And Mittge




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No. 51956-9-II


eventually relocated to Chehalis in Lewis County. The question here is whether these changed

circumstances were substantial enough under RCW 26.09.260(5) to require a finding of adequate

cause for a hearing on the petition for modification.

       “Relocation of either parent is a changed circumstance that may justify a minor

modification, but only if the original parenting plan did not anticipate relocation.” In re

Marriage of Tomsovic, 118 Wn. App. 96, 106, 74 P.3d 692 (2003). Under RCW 26.09.260(5),

courts must consider the nature of the relocation and whether the express provisions of the plan

contemplate such relocation. See Tomsovic, 118 Wn. App. at 101, 106-07; Hoseth, 115 Wn.

App. at 572. The parenting plan here outlined three different residential schedules depending on

Mittge’s return to “Pacific County” and how long he remained “home” in Pacific County. CP at

25-26. When the parenting plan was created, each party resided in Pacific County. The express

provisions of the parenting plan did not anticipate or plan for Mittge to move outside of Pacific

County.

       Mittge contends that his relocation to Chehalis was not a substantial change in

circumstances because the relocation squared with the original intent of the parenting plan to

provide equal residential time when he was not working out of state. However, the proper

inquiry is whether the change was “anticipated by the court at the time of the prior decree or

plan.” Tomsovic, 118 Wn. App. at 105. There is no indication that when the parenting plan was

entered the court or the parties anticipated that Mittge would move outside of Pacific County.

       We conclude that Mittge’s leaving his out-of-state job and relocating to Lewis County

meets the substantial change in circumstances threshold for a minor modification under RCW

26.09.260(5).




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No. 51956-9-II




            b.    No Change of Majority Residence

       The second requirement for granting a minor modification under RCW 26.09.260(5) is

that the proposed modification “does not change the residence the child is scheduled to reside in

the majority of the time.” In denying Weisenberger’s motion for reconsideration, the trial court

concluded that CM did not reside a majority of the time with Weisenberger because Phase 3 of

the parenting plan applied and gave Mittge equal parenting time.

       However, the parenting plan specifically stated that CM’s primary residential placement

was with Weisenberger. And the parenting plan clearly contemplated that because of Mittge’s

out-of-state work, CM would reside a majority of the time with Weisenberger even though the

residential time would be equal for periods of time under Phase 3. In addition, even if Phase 3

was always in effect, CM would not reside a majority of the time with Mittge. Finally, in the

previous seven months CM actually had resided with Weisenberger the majority of the time

because Mittge only had visitation every other weekend. Therefore, Weisenberger’s proposed

modification would not change the residence where CM was scheduled to reside a majority of

the time.

       We conclude that Weisenberger’s proposed modification would not “change the

residence the child is scheduled to reside in the majority of the time” as required for a minor

modification under RCW 26.09.260(5).

            c.   Change of Parent’s Residence

       The third requirement for granting a minor modification under RCW 26.09.260(5) is

satisfying one of three conditions: the proposed modification (a) does not exceed 24 full days in

a calendar year, or (b) “[i]s based on a change of residence of the parent with whom the child




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No. 51956-9-II


does not reside the majority of the time or an involuntary change in work schedule by a parent

which makes the residential schedule in the parenting plan impractical to follow,” or (c) does not

result in a schedule that exceeds 90 total overnights per year under certain circumstances. RCW

26.09.260(5)(a)-(c). In denying Weisenberger’s motion for reconsideration, the trial court

concluded a minor modification was inapplicable because the modification sought was for more

than 24 days.

       However, the conditions in RCW 26.09.260(5)(a)-(c) are disjunctive, and therefore

Weisenberger’s failure to satisfy the 24 day condition is not determinative if another condition is

satisfied. Here, Weisenberger relies on RCW 26.09.260(5)(b), Mittge’s change of residence. It

is undisputed that Mittge had relocated to Lewis County from Pacific County at the time of the

court’s order. The question here is whether the change in residence made the residential

schedule “impractical to follow” as required in RCW 26.09.260(5)(b).1

       The trial court did not address RCW 26.09.260(5)(b). The court stated that “[u]nder no

reading of the statute can the Court consider the Petitioner’s proposed parenting plan that

changes visitation by 130 days qualifies as a minor modification.” But the court failed to

recognize that regardless of the extent of the change, a minor modification may be allowed

based on a parent’s change in residence. And as a result, the court did not determine whether a

minor modification was allowed under RCW 26.09.260(5)(b).




1
  Mittge argues that Weisenberger is precluded from raising this argument on appeal because she
did not make the argument in the trial court and there was no evidence of impracticability.
However, in her petition for modification, Weisenberger stated “[t]he current parenting/custody
order is difficult to follow because the parent who has less residential time with the children has
moved.” CP at 35 (emphasis added). Weisenberger also raised the issue in her motion for
reconsideration, arguing that she pleaded a prima face case for a minor modification under RCW
26.09.260(5)(b).


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No. 51956-9-II


       We conclude that the trial court applied the wrong legal standard and therefore abused its

discretion when it did not consider whether Mittge’s change in residence provided a basis for a

minor modification under RCW 26.09.260(5)(b).

       3.   Summary

       We hold that the trial court erred (1) to the extent that the first two requirements of RCW

26.09.260(5) precluded a finding of adequate cause to schedule a hearing on Weisenberger’s

motion to modify, and (2) in failing to address whether Mittge’s move to Lewis County provided

adequate cause for a hearing under RCW 26.09.260(5)(b). Therefore, we reverse the trial court’s

finding of no adequate cause and remand for the court to reconsider adequate cause under RCW

26.09.260(5). Specifically, the trial court must address whether RCW 26.09.260(5)(b) allows a

minor modification.

B.    REVISION OF THE PARENTING PLAN

       Weisenberger argues that the trial court’s February 2018 order revising certain parenting

plan provisions constituted an improper modification of the final parenting plan because it (1)

redefined the terms “home” and “Pacific County” to “include any residential location within 85

miles of Raymond, WA,” CP at 80; (2) ordered the parties to follow Phase 3 even though Mittge

no longer lived in Pacific County; and (3) changed the location for exchanging CM and provided

that anyone could transport CM. Mittge contends that the court merely clarified the meaning of

its terms based on the original intent of the parties. We agree with Weisenberger.

       1.   Legal Principles

       “A permanent parenting plan may be changed in three ways: by agreement, by petition to

modify, and by temporary order.” In re Marriage of Christel, 101 Wn. App. 13, 22, 1 P.3d 600




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No. 51956-9-II


(2000). In order to modify a parenting plan, the trial court must find a “substantial change in

circumstances,” even if the modification is minor. See Tomsovic, 118 Wn. App. at 105-06.

       A modification occurs when the effect of the court’s ruling causes a party’s rights to be

“either extended beyond or reduced from those originally intended in the decree,” and requires a

specific modification procedure to be followed. Christel, 101 Wn. App. at 22 (citing Rivard v.

Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969)). In contrast, a clarification “is merely a

definition of the rights which have already been given and those rights may be completely

spelled out if necessary.” Rivard, 75 Wn.2d at 418; see also Kemmer v. Keiski, 116 Wn. App.

924, 933, 68 P.3d 1138 (2003). “A court may clarify a decree by defining the parties’ respective

rights and obligations, if the parties cannot agree on the meaning of a particular provision.”

Christel, 101 Wn. App. at 22.

       2.   Redefinition of “Home” and “Pacific County”

       The final parenting plan required Mittge’s visitation with CM be broken down into three

phases or time frames when he was “off work, and/or in Pacific County.” CP at 25. The

applicable phase depended on whether Mittge returned to “Pacific County” and how long he

remained “home.” CP at 25-26. If Mittge had occasion to “leave[] Pacific County for less than

two weeks,” the parties were to “remain in whatever phase was in place when the father left.”

CP at 26. And Mittge was instructed to “give the mother 48 hours notice when returning to

Pacific County and 24 hours notice when leaving Pacific County.” CP at 26.

       The trial court revised the terms “home” and “Pacific County” to “include any residential

location within 85 miles of Raymond, WA.” CP at 80. The court stated on the record, “It’s a

clarification . . . I don’t want your client deciding that Pacific County means Pacific County.”

RP at 40.




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       This revised definition was a modification to the parenting plan rather than a clarification

of an ambiguous existing provision. “Pacific County” is an unambiguous term that requires no

further interpretation. All subsequent references to “home” under section 8(B) of the plan

clearly refer to Pacific County. The revision of these terms goes beyond filling in procedural

details and clearly expands Mittge’s rights under the plan. Under the parenting plan, Mittge was

entitled to visitation with CM provided he returned anywhere within Pacific County. The plan

omitted any reference to a particular distance or town. But under the trial court’s revision,

Mittge now can relocate anywhere within 85 miles of Raymond and still be at “home” or in

“Pacific County” for the purpose of determining CM’s residential schedule.

       Mittge concedes that the “plan uses both ‘Pacific County’ and ‘home’ interchangeably,”

and that the terms “shar[e] a common meaning and a common function within the plan.” But he

argues that a restrictive definition of “Pacific County” would render all references to “home”

meaningless. We agree that the terms are used interchangeably. But we reject Mittge’s

argument because it is internally inconsistent. Simply because the terms have a shared meaning

does not render one term meaningless.

       Mittge also argues that a “restrictive definition” would yield an absurd result because he

would have no visitation rights at all if he lived outside of Pacific County. We agree. But the

way to correct this result is through a minor modification under RCW 26.09.260(5), not through

a court’s unilateral revision of the parenting plan. And redefining “Pacific County” to include

part of any other county yields its own absurd result.

       We hold that the trial court erred by revising the terms “home” and “Pacific County” to

include “any residential location within 85 miles of Raymond, WA.” CP at 80.




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No. 51956-9-II


       3.   Instruction to Follow Residential Phase 3

       The parenting plan set out three phases for Mittge’s visitation with CM for when he was

“off work, and/or in Pacific County,” depending on when Mittge returned to “Pacific County”

and how long he remained “home.” CP at 25-26. The trial court ordered that Phase 3 applied

even though Mittge no longer lived in Pacific County.

       The instruction to follow Phase 3 altered both parties’ visitation rights as provided in the

parenting plan. Under the parenting plan, Mittge and Weisenberger were instructed to “share

time equally with [CM]” provided Mittge returned to “Pacific County” and “remain[ed] home

beyond the fourth week.” CP at 25-26. But under the trial court’s revisions, Mittge now can

relocate anywhere within 85 miles of Raymond and still be entitled to 50 percent visitation with

CM under Phase 3.

       Therefore, we hold that the trial court erred by instructing the parties to follow Phase 3 of

the parenting plan despite Mittge’s move to Lewis County.

       4.   Revisions to Transportation Provisions

       The parenting plan provided that CM would be exchanged for parenting time at

“Raymond Police Station or another agreed upon location.” CP at 29. The parenting plan also

stated that Lorie Mittge could not transport CM. The trial court revised the parenting plan to

require the exchange to occur in Pe Ell and to state that any licensed and insured driver could do

the exchange.

       These revision constituted modifications, not clarifications. The court completely

changed the exchange point from Raymond to Pe Ell, which is in Lewis County. And the court

completely eliminated the parenting plan’s prohibition on Lori Mittge exchanging CM.

Accordingly, we hold that the trial court erred in making these revisions.




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No. 51956-9-II


       5.   Summary

       We hold that the trial court erred by (1) revising the terms “home” and “Pacific County”

to include “any residential location within 85 miles of Raymond,” (2) instructing the parties to

follow Phase 3 despite Mittge’s move to Lewis County, and (3) revising the parenting plan to

require the exchange to occur in Pe Ell and to state that any licensed and insured driver could do

the exchange. Therefore, we reverse, in pertinent part, the trial court’s February 2018 order.

C.    REMAND TO A DIFFERENT JUDGE

       Weisenberger requests that the case be reassigned to a different judge on remand.

Weisenberger contends that reassignment is necessary to preserve the appearance of fairness

because the trial court expressed concern that she was trying to alienate CM from Mittge. We

disagree.

       “Pursuant to the appearance of fairness doctrine, a judicial proceeding is valid if a

reasonably prudent, disinterested observer would conclude that the parties received a fair,

impartial, and neutral hearing.” State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703 (2017).

Under this doctrine, a presiding judge must actually be impartial and also appear to be impartial.

Id. The question is “whether the judge’s impartiality might reasonably be questioned.” Id. To

make this determination, we apply an objective test that assumes a reasonable person knows and

understands all the relevant facts. Id. The party asserting a violation has the burden of showing

evidence of a judge’s actual or potential bias. Id. A party asserting a violation of the appearance

of fairness doctrine must produce sufficient evidence demonstrating bias. Id. Mere speculation

is not enough. In re Estate of Hayes, 185 Wn. App. 567, 607, 342 P.3d 1161 (2015).

       Reassignment to a new judge on remand is available only in limited circumstances,

including where the trial judge will exercise discretion on remand regarding the issue that




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No. 51956-9-II


triggered the appeal and has apparently prejudged the issue. Solis-Diaz, 187 Wn.2d at 540. We

remand to a different judge where the facts in the record show that “the judge’s impartiality

might reasonably be questioned.” Id. “[E]ven where a trial judge has expressed a strong opinion

as to the matter appealed, reassignment is generally not available as an appellate remedy if the

appellate court’s decision effectively limits the trial court’s discretion on remand.” State v.

McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402 (2014).

       The record here does not show that the trial judge cannot be impartial. When read in

context, the trial judge’s observations of the parties were critical of not only Weisenberger but

also of Mittge.

       Further, there is no indication that the trial court has prejudged this case. On remand, our

opinion prevents the trial court from again ruling that the first two requirements of RCW

26.09.260(5) preclude a finding of adequate cause to schedule a hearing on Weisenberger’s

motion to modify. Instead, the trial court’s discretion is limited to deciding for the first time

whether Mittge’s move to Lewis County provided adequate cause for a hearing under RCW

26.09.260(5)(b). The trial court never expressed an opinion as to the merits of this issue.

Because the record does not show that the trial judge cannot be impartial or that he prejudged the

issue to be addressed on remand, we decline to reassign the matter to a different judge.

D.    ATTORNEY FEES ON APPEAL

       Weisenberger requests attorney fees on appeal under RCW 26.09.140 and RAP 18.1.

RCW 26.09.140 gives us discretion to award reasonable attorney fees to either party on appeal

“after considering the financial resources of both parties.” We must balance the needs of the

party requesting attorney fees against the ability of the other party to pay. In re Marriage of




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No. 51956-9-II


Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999). Based on the parties’ financial declarations,

we decline to award attorney fees under RCW 26.09.140.

        Mittge contends that we award him reasonable attorney fees on appeal under RAP 18.9(a)

because Weisenberger’s appeal was frivolous. As discussed above, we rule in favor of

Weisenberger on both primary appeal issues. Therefore, Weisenberger’s appeal is not frivolous

and we decline to award attorney fees on this basis.

                                          CONCLUSION

        We reverse the trial court’s order denying adequate cause and revising the parenting plan

and remand for further proceedings consistent with this opinion. Specifically, the trial court

must address whether RCW 26.09.260(5)(b) provides the basis for an adequate cause hearing

and allows a minor modification.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.


 We concur:



 SUTTON, J.




 GLASGOW, J.




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