                                                                                                                 FILED
                                                                                                          COURT OF APPEALS
                                                                                                               UI lSfOt It
                                                                                                         201511 R 31   AM 8: a8
      IN THE COURT OF APPEALS OF THE STATE OF WASHIl ff                                                                SHINGTON
                                                                                                          Y
                                                   DIVISION II

IN RE CUSTODY OF L.Z.,                                                                No. 46466 -7 -II


                                       a minor child.




    DANIEL SCHOCH,


                                       Respondent,


            and




    LIYING ZHANG SCHOCH,                                                   UNPUBLISHED OPINION


                                       Appellant,


          SUTTON, J. —       Liying Zhang1 appeals the trial court' s order granting Daniel Schoch, her

ex- husband, permanent nonparental custody of one of Zhang' s minor children. Zhang argues that

the trial court erroneously applied a " best interests of the child" standard and thereby abused its

discretion and erred when it changed the child' s last name. Zhang requests attorney fees and costs

on appeal.        Schoch cross -appeals arguing that the trial court erred when it denied his motion to

amend his petition to add a de facto parentage claim.

          We hold that ( 1) the trial court abused its discretion when it erroneously applied a " best

interests   of the child" standard; (   2) the trial court erred by changing the minor' s last name; and ( 3)

the trial court abused its discretion in denying Schoch' s motion to add a de facto parentage claim.

Accordingly, we vacate the trial court' s nonparental custody decree and residential schedule and

reverse and remand for proceedings consistent with this opinion. On remand, Schoch may pursue



1
    We   refer   to   Liying Zhang   Schoch   as   Liying Zhang,   we   intend   no   disrespect.
No. 46466 -7 -II




a de facto parentage claim. We award Zhang reasonable attorney fees and costs on appeal in the

amount of $10, 000 based on her need and Schoch' s ability to pay.

                                                       FACTS


         Liying Zhang      met   Daniel William Schoch through the internet in October 2008.       Zhang

was   living   in China,   and   Schoch was   living   in Grays Harbor   County. Zhang had two daughters,

Lh.   and   Lx.?, both   whom she adopted as infants after finding them abandoned near her home in

China.      At the time of trial, Lh. was approximately 14 years old and Lx. was approximately 15

years old.




         Zhang and Schoch met in person several times before they were married in November

2009.    That same November, Zhang left her job with a Chinese pharmaceutical company and

moved to Grays Harbor County with her two daughters to be with Schoch. Once she relocated to

the United States, Zhang no longer worked outside the home and she and her daughters lived in

Schoch' s home.


            After they married, Schoch asked Zhang to care for his ailing father and several of Schoch' s

grandchildren. This arrangement caused marital stress because Zhang wanted to work outside the

home.       Schoch insisted that Zhang care for his family, and he threatened not to renew Zhang' s

green card. Zhang complied, but felt she was no longer treated as Schoch' s equal.

            Tension also existed in the home because of Zhang' s desire to have her daughters speak to

her in Chinese.       During one incident, Schoch became angry when Zhang and Lx. did not eat



2 It is appropriate to provide some confidentiality in this case. Accordingly, it is hereby ordered
that initials will be used in the case caption and in the body of the opinion to identify the parties
and other juveniles involved.




                                                          2
No. 46466 -7 -II



American food, but              ate   Chinese food instead.          Schoch complained the house smelled, swept the


meal off the table onto the floor, and fed the remaining food to the dog. When Zhang tried to clean

the dishes, Schoch threw a pot or bowl at Zhang that struck her on the arm and caused a welt.

          According to Schoch, Zhang did not like Lh.' s rapid adjustment to American culture.

When Lh. first arrived in the United States when she was 10 years old, she spoke no English, but

by   the time      of   trial   she could speak     better English than her            mother.   Zhang would become upset

when Lh. did not want to speak to her in Chinese. Schoch refused to allow Zhang to speak Chinese

to either daughter in his presence. At one time, during an argument, Zhang got down on her knees,

crying and begging her daughters to speak Chinese to her.

           On November 6, 2012 Zhang filed a petition for dissolution. Zhang intended to relocate to

California with her daughters; a friend had offered to let them live with her in order to help Zhang

find a job. Zhang bought a round trip airplane ticket for herself and Lh. to travel to China to visit

Zhang' s ailing sister -in -law; the older daughter, Lx. had just traveled to China the previous year.

Zhang picked up Lh. from school to take her to the airport, but Lh. physically resisted going.

           Schoch filed a nonparental custody petition that same day and obtained an ex parte

restraining        order    preventing     Zhang from          removing Lh. from Washington.              In his petition for


nonparental custody, Schoch alleged that Zhang' s parental visitation should be limited due to ( 1)

     p] hysical,   sexual or a pattern of emotional abuse "; (               2) "[    a] history of acts of domestic violence

                                                3
as   defined in RCW 26. 50. 010( 1) ";              and (   3) "[   t] he child has expressed great fear of the mother and




3
    RCW 26. 50. 010( 1) defines "[ d] omestic                violence" as: "(        a) Physical harm, bodily injury, assault,
or the infliction of fear of imminent physical harm, bodily injury or assault, between family or
household members."




                                                                       3
No. 46466 -7 -I1




has been      abused       by the     mother."        Clerk' s Papers ( CP) at 3, 4. Zhang denied these allegations. The

trial court then entered an agreed temporary order, placing Lh. with her mother but allowing

Schoch       visitation.        The trial court also appointed a guardian ad litem ( GAL) to investigate and


report to the trial court regarding custody and visitation, and ordered the GAL to hold the children' s

passports.




             The GAL investigated the nature of Schoch' s and Zhang' s relationship with both girls, and

reported her findings and recommendations to the trial court. Although Schoch did not adopt either


daughter, he actively participated in their schooling and activities, and both girls referred to Schoch

as   their   father      during      the   parties'   four   year marriage.            Lx. showed little interest in rural farm life


and maintained a closer bond with her mother. The younger daughter, Lh. became very involved

with   the    farm       animals and embraced            her      new   life   with    Schoch. Lh. " developed          a strong parentlike

bond [     with    Schoch]       similar      to that of     a   father -daughter relationship."               CP at 43C ( Sealed Report


of   GAL      at   3).    Lh.   expressed a "         strong desire to             remain with [      Schoch]" and continue her life in


Grays Harbor.4 CP at 43C ( Sealed Report of GAL at 3).

             The GAL reported that Lh. had repeatedly contacted her complaining about Zhang, but the

GAL        was not able          to   confirm      any   allegations       of abuse or           threats.     The GAL testified that Lh.


expressed " concern" " over and over again"                             about       her " fear   of   being   sent   back to China."   VRP


    July   30, 2013)      at   91.    Schoch alleged that Zhang kicked Lh. and slapped her in the face with a wet




4
     Schoch        acknowledged            that if    Zhang       remained          in Grays Harbor, "          certainly that could be a
possibility that they [ could] have some sort of shared custody or [ Schoch] has lots of visitation,
but if [Zhang] leaves the                  area,   custody       should rever[ t]      to [ Schoch]."       VRP ( July 30, 2013) at 101-
02.




                                                                               4
No. 46466 -7 -II



towel    numerous       times.       Zhang denied          these allegations.            According to the GAL' s report, neither

Child Protective Services nor law enforcement substantiated these allegations after investigating

them.


          After completing her investigation, the GAL                            reported allegations    that: (     1) Zhang inflicted

self h
     - arm over        Lh.' s   refusal     to   speak    to her in Chinese; ( 2)          Zhang made repeated threats to send

Lh. back to China; and ( 3) Zhang attempted to fly to China and take Lh. with her against Lh.' s

will, but Schoch stopped Zhang from doing so by obtaining an ex parte temporary restraining

order.



          The GAL described Lh. as a " typical pre- teen" who " knows what she wants, and she is

                  her           way." VRP ( July 30, 2013)                      90. But the GAL             testified that Lh. " never
going to    get         own                                               at                         also



    indicated      a    lack    of affection        for [ Zhang]     or   her    older sister,"   but instead she had " expressed


great concern"          for them. VRP ( July 30, 2013)                    at   91.     The GAL summarized Lh.' s concerns by

stating: "[ T] his little       girl [ Lh.]       is very torn. She very much wants to stay here, and she wants her

mom      to stay here,     and    her      sister   to stay here, but          she [   Lh.] wants to maintain a relationship with


Mr. Schoch,       even    if they [ Zhang           and   Lx.] don' t."       VRP (July 30, 2013) at 92. The GAL described

Lh.' s relationship with her mother as " challenging" in part because Zhang and her older daughter

Lx. " cling very tightly to their                cultural roots. [   Lh.] has          pushed some of   that away."      VRP (July 30,

2013) at 91.


          The GAL testified that it                 would   be in Lh.' s " best interests" to " remain         ...    in the Montesano


School District         and    keep ... on with the activities she has been involved in the last three [ years]."

VRP ( July 30, 2013)            at   89.    The GAL declined to recommend who should be awarded custody of




                                                                          5
No. 46466 -7 -II




Lh., but   said   the decision        should   be based        on "   facilitat[ ing]"    the " living circumstances" that the

GAL recommended were in Lh.' s best interests. VRP ( July 30, 2013) at 89.

       Several months before trial, Schoch moved to amend his pleading to add a de facto

parentage claim as        to Lh.      The trial     court   denied the       motion without explanation.          On August 9,


2013, after a bench trial, the trial court granted Schoch' s petition and awarded him permanent


nonparental custody of Lh. and entered a nonparental custody decree, residential schedule, and

findings of fact and conclusions of law dissolving the marriage. 5 In awarding Schoch permanent

nonparental custody, the trial court found:

           T] hat   the       child    is    flourishing        academically,        physically,      athletically   and


        extracurricularly living in Grays Harbor County and attending Montesano Schools.
        She is a 4.0 student, is in band, plays traveling team softball, is a member of 4 -H,
        is raising a market steer for County Fair, loves animals, and thoroughly enjoys and
        embraces        the   farm    and    American lifestyle.           She has       made close   friends.   She has
        known Daniel Schoch                  as   her "   Daddy" and has had no other father -daughter
        relationship. The child has expressed concern about the uncertainty of living with
        the    mother.          There have been numerous incidents of inappropriate verbal,
        psychological and physical punishment of the child by the mother and threats of
        being sent away from the Country for transgressions.

           The child' s residence with the mother would be an environment detrimental to her
           continued growth and welfare.




CP at 73 ( Finding of Fact (FF) 2. 6).

           The trial    court   further found that ( 1)           Zhang had encouraged a. parent -child relationship

between Schoch          and    Lh.,    and   that   it   was   in Lh.' s " best interest[ s] "    6 to be placed in Schoch' s




5 The trial court found that Zhang stipulated to adequate cause to hear the case under by agreeing
that the    petitions   for    nonparental        custody      and    dissolution    could    be heard together.     On appeal,

Zhang argued that she never stipulated to adequate cause.

6 CP at 75 ( Conclusion of Law (CL) 3. 2).



                                                                       6
No. 46466 -7 -II



                                                                    7
custody; ( 2)    Zhang " inappropriate[ ly]          punish[ ed]"       Lh.; (3) Zhang "threat[ ened] " 8 to send Lh. back

to China; ( 4)       Zhang attempted to travel with Lh. to China without the trial court' s or Schoch' s

approval; and (        5) the trial   court    had "   significant questions regarding [ Zhang' s] credibility after

hearing [ Zhang' s] testimony, witnessing her demeanor, and hearing the testimony and reports of

others."    CP    at   74 ( FF 2. 13).     Upon entering its custody order, the trial court also changed Lh.' s

last name to Schoch.


           Zhang appeals. Schoch cross -appeals the trial court' s denial of his motion to amend to add

a de facto parentage claim.

                                                          ANALYSIS


           Zhang argues that the trial court applied the wrong " best interest[ s] " 9 of the child standard
and   thereby    abused     its discretion     by failing   to apply the      correct "` actual     detriment "' standard. Br.


of Appellant at 22 (quoting In re Custody ofE.A. T. W., 168 Wn.2d 335, 338, 227 P. 3d 1284 ( 2010)).

We    agree.     The trial    court      did   not   apply the   correct " actual       detriment"    standard to its custody

determination.


           We   review     custody decisions for          abuse of      discretion.      In re Marriage of Chandola, 180

Wn.2d 632, 642, 327 P. 3d 644 ( 2014). " A                  court' s      decision is manifestly      unreasonable"         if (1) "   it


is   outside   the   range of acceptable choices, given             the   facts   and   the   applicable   legal   standard "; ( 2)    it


 is based      on untenable grounds            if the factual findings       are unsupported        by   the   record ";   and ( 3) it




7 CP at 73 ( FF 2. 6).

8 CP at 73 ( FF 2. 6).

9 VRP ( Aug. 9, 2013) at 143.


                                                                  7
No. 46466 -7 -II



 is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the


requirements of      the       correct standard."    West v. Dep' t ofLicensing, 182 Wn. App. 500, 516 -17, 331

P. 3d 72, review denied, 339 P. 3d 634 ( 2014).


         We review a trial court' s statutory interpretation de novo. Grieco v. Wilson, 144 Wn. App.

865, 873, 184 P. 3d 668 ( 2008), aff'd, E.A. T. W., 168 Wn.2d 335.                                Because of the trial court' s


 unique   opportunity to personally             observe     the   parties,"    we will disturb a custody designation only

when both the trial court' s written and oral opinions demonstrate a failure to consider statutory

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


not review     the trial       court' s   credibility determinations          or reweigh      the evidence.        In re Welfare of

C.B.,   134 Wn. App. 942, 953, 143 P. 3d 846 ( 2006).

               I. " ACTUAL DETRIMENT" STANDARD IN A NONPARENTAL CUSTODY ACTION


         Chapter 26. 10 RCW                allows   third   parties     to   petition   for   child   custody. "    Such an award


confers on the nonparental custodian the legal power to ` determine the child' s upbringing,' to the

exclusion of       the   natural parent."       In re Custody of C.C.M., 149 Wn. App. 184, 204, 202 P. 3d 971

 2009) ( quoting RCW 26. 10. 170).                   Parents, however, have a protected liberty interest in the

custody of their children. In re Custody ofB.M.H., 179 Wn.2d 224, 235, 315 P. 3d 470 ( 2013).

          In   a   custody dispute between             parents        and     nonparents . . .        the analysis must

          accommodate the natural parents' constitutionally protected priority right to the
          custody of their children. The general constitutional rule of " respect for family
          integrity" demands a substantive showing in a nonparental custody action of far
          more than a child' s best interests.


C. C.M., 149 Wn.          App.     at   204 -05 ( internal   citations omitted) ( quoting             In   re   Custody   of A. C., 165


Wn.2d 568, 580, 200 P. 3d 689 ( 2009) (                J.M. Johnson, J., concurring)).




                                                                    8
No. 46466 -7 -II



           Therefore, a nonparent can obtain custody of a child only if (1) a parent is unfit, or ( 2)

custody     with a parent would result        in "' actual detriment to the child' s growth and development.'


B.M.H., 179 Wn.2d       at   235 ( quoting E.A. T..W., 168 Wn.2d            at   338);   see also In re Custody ofShields,

157 Wn.2d 126, 142 -43,             136 P. 3d 117 ( 2006).            The showing required by the nonparent is

substantial, and "    only [ under]    `   extraordinary       circumstances '        does there exist a compelling state

interest that justifies interference with the integrity of the family and with parental rights. Shields,

157 Wn.2d at 145 ( quoting In re Marriage ofAllen, 28 Wn. App. 637, 649, 626 P.2d 16 ( 1981));

see also    B.M.H., 179 Wn.2d          at   236.    The nonparent' s burden of proof is clear and convincing

evidence.     C.C.M., 149 Wn. App. at 205.

            A parent is unfit if he or she cannot meet a child' s basic needs, and in such cases, the State

is justified in removing the child from the home and in certain cases, permanently terminating

parental rights."     B.M.H., 179 Wn.2d            at   236;   see also   Shields, 157 Wn.2d        at   142 -43.   But Schoch


did not argue that Zhang was an unfit parent. The issue at trial was whether Zhang' s custody of

Lh. would cause actual detriment to Lh.


           Significantly, the " actual detriment" determination does not focus on the " best interests of

the child."     Facts that merely support a finding that nonparental custody is in the child' s " best

interests" are insufficient to award custody to the nonparent. B.M.H., 179 Wn.2d at 237 ( quoting

In   re   Custody   ofS.C.D.   -L., 170 Wn.2d 513, 516 -17, 243 P. 3d 918 ( 2010)); Shields, 157 Wn.2d at


150. "     A nonparent' s capacity to provide a superior home environment to that which a parent can

offer is not enough to outweigh the deference that is constitutionally owed to a natural, fit parent."

C. C.M., 149 Wn. App.          at   204 ( citing Shields, 157 Wn.2d              at   144).   Similarly, a nonparent cannot

obtain custody of a child merely because the trial court finds that the nonparent would be a better


                                                                  9
No. 46466 -7 -II



parent.   E.A. T. W., 16.8 Wn.2d      at   346 -47.      And " actual detriment" does not include that the child


will   be deprived     of " wonderful      opportunities"      as   a member    of   the   nonparent' s   family.   In re


Custody ofAnderson, 77 Wn. App. 261, 266, 890 P. 2d 525 ( 1995).

                                  II. THE TRIAL COURT' S CUSTODY DECISION


          Although the trial       court purported        to apply the "   actual    detriment" standard, entering a


written   finding   that "[   Lh.' s] residence with [ Zhang] would be an environment detrimental to her

continued growth and welfare, "10 its oral ruling clearly shows that the trial court based its decision

solely on a consideration of what was in Lh.' s " best interest[ s] i11. Therefore, we hold that the trial

court erred in applying the wrong legal analysis in its custody decision.

                                A. Consideration of Trial Court' s Oral Decision


          Despite the trial court' s finding that living with Zhang would be " detrimental "12 to Lh., the
trial court' s oral rulings clearly show that it was applying a " best interests of the child" standard

and not an " actual detriment" standard. Therefore, we must reverse the trial court' s custody ruling.

          Ordinarily, we will not look behind a trial court' s oral rulings to contradict the trial court' s

written   ruling. In   re     Marriage of Getz, 57 Wn.        App.   602, 605   n. 4,   789 P. 2d 331 ( 1990). But we


may consider a .trial court' s oral decision so long as it is not inconsistent with the trial court' s

written   findings   and conclusions.       State   v.   Kull, 155 Wn.2d 80, 88, 118 P. 3d 307 ( 2005); see Getz,


57 Wn. App. at 605 n.4 (we may resolve an ambiguity in a trial court' s written decision by looking



1° CP at 73 ( FF 2.6).

11 VRP ( Aug. 9, 2013) at 143.

12 CP at 73 ( FF 2. 6).




                                                              10
No. 46466 -7 -II



to its   oral   ruling).   And oral findings that the trial court expressly incorporates it into its findings

of   fact,   conclusions of          law,   and   judgment   are   binding. State v. Truong, 168 Wn. App. 529, 539

n. 6, 277 P. 3d 74, review denied, 175 Wn.2d 1020 ( 2012).


             Here, the trial court' s written findings of fact and conclusions of law do not state what


standard        it   applied   in its custody determination.              The trial court entered a finding regarding

detriment, but the trial             court also entered a     finding    that "[   i]t is in the best interest[ s] of the child"


to be    placed      in Schoch'      s   custody. CP   at   74 ( FF 2. 7).   Therefore, because the written findings of

fact and conclusions of law were ambiguous, we will consider the trial court' s oral rulings to


ascertain what standard it was applying.

             In its oral ruling, the trial court unequivocally applied the " best interests" standard:

             Now, the statute says I do what' s in the best interests of the child. I do believe at
             this time for the following reasons, education, age, personal life, i.e., her athletic
             involvement, school involvement and other matters, all involving that, her issues
             with 4H, and other issue of that, that I do believe it' s in the best interests ofthe child
             that the custody at this time be awarded to Mr. Schoch.

VRP ( July 30, 2013)            at    108 ( emphasis   added).      The trial court did not apply or even reference the

correct standard —actual
                   "                     detriment" to the child.


             At the presentation hearing on August 9, 2013, Zhang objected to Schoch' s proposed order

that included the finding regarding " detriment" because that finding had not been part of the trial

court' s oral ruling. VRP (Aug. 9, 2013) at 136. The trial court explained its oral ruling:

                        Now, when you come to the terminology of detrimental and best interests,
             isn' t that what you' re doing is evaluating? You are evaluating two people and you

             come to the conclusion that this one, quote, is in the best interests of the child. If
             you remove that child from the environment that' s in the best interests of the child
             isn' t that detrimental?


VRP (Aug. 9, 2013) at 143 ( emphasis added).



                                                                    11
No. 46466 -7 -II




        In addressing whether Zhang could properly provide for Lh., the trial court stated:

         I don' t think —we'   re not sitting here saying mom is running some sweat shop or
         mom' s over      here                 dump of a house. We' re not saying that. We 're
                                  with a garbage


         saying that it' s in the best interests ofthe child that the finding of the Court, where
         this Court— kid is going to         live   and go   to   school —   and by the way, she' s only going
         to do so for about three or four years here and then she' s off to college and guess
         who' s probably going to pay for the college, the guy she' s living with.

VRP (Aug. 9, 2013) at 143 ( emphasis added).

         The trial court then stated:


         Now, let'   s   don' t   get   lost in   semantics       about   their   finding   detrimental.   I' m not

         sitting here trying to denigrate [ Zhang], Mr. Campbell. The law says you' ve got to
         do one to get to the other and that' s all I am telling you. If this kid was down there
         in California with mom I don' t have any problem that the kid would be fed and
         clothed and sheltered or whatever.             But   what     have   you   done? You have then taken
         the kidfrom the environment that a Courtfound was in the best interest ofthe child,
         that' s where the child should continue for the next three or four years of her life.
         And then you' ve got all this other stuff, her education, her friends, her peers ...."


         I' m the one who had to wrestle with this and make the decision and it wasn' t
         pleasant.... But you know what, you look at the statute for this purpose for that
         part this proceeding, it' s the best interests of the child, period.

VRP (Aug. 9, 2013) at 143 -45 ( emphasis added).

         The trial court' s oral comments leave no doubt that it awarded custody based on Lh.' s " best

interests."   In addition, the trial court erroneously stated that the applicable statute required the

court   to apply   a "   best interests"    standard.    VRP ( July 30, 2013) at 108; see also VRP ( Aug. 9,

2013) at. 145. The trial court abused its discretion when it applied this standard because the proper

standard is whether remaining with the parent would cause " actual detriment to the child' s growth

and   development."        B.M.H., 179 Wn.2d at 235 ( quoting E.A. T. W., 168 Wn.2d at 338).




                                                                  12
No. 46466 -7 -II




         We hold that the trial court erred in applying the wrong legal standard in its custody

decision. Therefore, we reverse the trial court' s award of custody to Schoch.

                               B. The Trial Court Changed Lh.' s Last Name


         In the custody decree, the trial court changed Lh.' s last name to Schoch. Zhang argues that

this relief was neither requested nor authorized under RCW 4.24. 130. 13 In a custody action, the

party desiring a change of name of his or her minor child must set forth the reasons for the change

under   RCW 4. 24. 130. Daves         v.   Nastos, 105 Wn.2d 24, 29, 711 P. 2d 314 ( 1985).        But in order to


change the child' s name, the trial court must enter a finding that the name change is in the child' s

best interests. Daves, 105 Wn.2d            at   29 -30.   The trial court failed to enter any such finding in this

case. Therefore, we reverse the trial court' s order changing Lh.' s last name to Schoch.




13
     RCW 4. 24. 130( 1)         Any person desiring a change of his or her name or that of his or her
                          states: "

child or ward, may apply therefor to the district court of the judicial district in which he or she
resides, by petition setting forth the reasons for such change; thereupon such court in its discretion
may order a change of the name and thenceforth the new name shall be in place of the former."


                                                              13
No. 46466 -7 -II



                                              III. DE FACTO PARENTAGE CLAIM


          Schoch argues that the trial court erred in denying his motion to amend to add a de facto

parentage claim. We agree.


          Motions to        amend " should        be   freely    granted when      justice   so requires."    Chadwick Farms


Owners Ass 'n         v.   FHC LLC, 166 Wn.2d 178, 202, 207 P. 3d 1251 ( 2009); CR 15(                         a).   We will not


overturn a trial court' s refusal to grant a motion to amend pleadings except for manifest abuse of

discretion.        Greenhalgh       v.
                                         Dep' t   of Corr., 170 Wn.         App.    137, 143, 282 P. 3d 1175 ( 2012).        We


reverse a     trial   court' s   decision for     abuse of      discretion if it "` is   manifestly unreasonable, exercised

on untenable grounds, or exercised                 for      untenable reasons,'     with the last category including errors

of   law."    Humphrey Indus., Ltd. v. Clay Street Assocs., LLC, 170 Wn.2d 495, 506, 242 P. 3d 846

 2010) ( quoting Noble              v.   Safe Harbor         Family   Pres. Trust, 167 Wn.2d 11,             17, 216 P. 3d 1007


 2009)).


          The trial court did not state a reason for denying the motion to amend. At the time of the

motion, however, the case law could have been interpreted as precluding a former stepparent from

becoming       a   de facto      parent.     See In    re   Parentage of M.F., 168 Wn.2d 528, 532, 228 P. 3d 1270


 2010).      Because there are no other apparent reasons to deny the motion, we assume that the trial

court determined that the amendment would be futile under existing law.

             Our Supreme Court recently               clarified   that M.F. "did     not preclude all stepparents as a class


from    being      de facto      parents."    B. M.H., 179 Wn.2d           at   243 ( citing M.F., 168 Wn.2d 528).        At the


time that the trial court denied Schoch' s motion to amend, B.M.H. had not yet been decided.

Nevertheless, we hold that the trial court abused its discretion in denying the motion based on the




                                                                      14
No. 46466 -7 -II




now -rejected conclusion that he did not qualify for de facto parentage as a former stepparent. We

hold that on remand, Schoch may pursue a de facto parentage claim based on B.M.H.

                                                    IV. ATTORNEY FEES AND COSTS


        Finally, Zhang requests reasonable attorney fees on appeal based on her need and Schoch' s

ability to pay. RCW 26. 10. 080.                   This   statute provides,        in   part: "   Upon any appeal, the appellate

court may, in its discretion, order a party to pay for the cost to the other party of maintaining the

appeal and       attorney'     s   fees in   addition     to statutory       costs."    RCW 26. 10. 080.          Therefore, we have


the authority, "       after   considering the financial            resources of all parties,"            to award attorney fees to

Zhang. RCW 26. 10. 080.

        Zhang' s only source of income was spousal maintenance, which has ended. Schoch is self -
employed,        owns    two businesses,            and    has    available     assets.     Given their income disparity and

expenses,    Zhang has             a   financial   need     and    Schoch has the' ability to pay.                 We award Zhang

reasonable attorney fees on appeal in the amount of $10, 000.

                                                            CONCLUSION


        We hold that: (             1) The trial court abused its discretion when it erroneously applied a " best

interests   of   the   child" standard,        equating it       with   the " detriment to the          child"   standard; (   2) the trial


court erred by changing the child' s last name; and (3) the trial court abused its discretion in denying

Schoch' s motion to add a de facto parentage. Accordingly, we vacate the trial court' s non -parental

                                                                                                  for            trial.   We also grant
custody decree         and residential schedule, and reverse and remand                                 a new




Zhang' s request that the matter be heard by a different superior court judge. On remand, Schoch

may pursue a de facto parentage claim. We award Zhang reasonable attorney fees and costs on




                                                                        15
No. 46466 -7 -II




appeal in the amount of $10, 000 based on her need and Schoch' s ability to pay.

        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.




 We concur:




                                                 16
