      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



IN THE MATTER OF THE
PARENTAGE OF                                     No. 72316-2-1


L.L. LYLES,                                      DIVISION ONE


                     Child,

GEOFFREY LYLES,                                  UNPUBLISHED OPINION

                     Respondent,

and

TRINITY SESAY,

                     Appellant.                  FILED: July 27, 2015

       Spearman, C.J. — Trinity Sesay appeals the trial court's order establishing

a residential schedule for her and Geoffrey Lyles's daughter, L.L. She argues

that the trial court abused its discretion when it ordered joint decision making on

issues related to the child's education even though the court found Lyles had a

history of domestic violence. She also challenges the trial court's finding that the

parties had a "mutually abusive relationship" contending that the factual record

does not support such a finding. We agree with both contentions and remand

with instructions to strike the two challenged provisions.
No. 72316-2-1/2


                                             FACTS

        Trinity Sesay and Geoffrey Lyles began dating in 2010. The couple soon

conceived a child, L.L. The couple split up in December 2013 and on July 12,

2013, Lyles filed a petition to establish a residential schedule on July 12, 2013.

        A trial was held, during which Sesay described her relationship with Lyles

as "very verbally, physically abusive, and draining." 1 Verbatim Report of

Proceedings (VRP) at 100.1 Sesay testified that Lyles had been physically

abusive to her on multiple occasions. And she testified that she had filed for a no-

contact order against Lyles. Lyles did not deny any of the allegations of physical

violence against Sesay and acknowledged the active 60-month no-contact order

issued by Federal Way Municipal Court.

        On June 25, 2014, the trial court entered a final parenting plan. It

provided:

        The father's residential time with the child shall be limited or
        restrained completely, and mutual decision-making and
        designation of a dispute resolution process other than court action
        shall not be required because this parent has engaged in the
        conduct which follows:


        A history of acts of domestic violence as defined in RCW
        26.50.010(1) or an assault or sexual assault which causes grievous
        bodily harm or the fear of such harm.

Clerk's Papers (CP) at 18 (emphasis added). Despite this provision, the plan

required "joint" decision-making regarding L.L.'s education, in particular, which

school the child would attend. CP at 23. The plan also noted the court's finding



         1There are two volumes of trial transcripts in this case. Transcripts from 6/11/14 are
referred to herein as "1VRP." Transcripts from 6/25/14 and 7/7/14 are referred to as "2VRP."
No. 72316-2-1/3


that "the parties were mutually engaged in an abusive relationship but there is

evidence indicating that the father's level of physicality exceeded that of the

mother. The Court also finds that at time of trial, the father had substantially

complied with his court ordered domestic violence treatment and was exhibiting

signs of accountability and appreciation for the harm caused by his prior

conduct." CP at 19.

       Following a motion for reconsideration, the court held an additional

hearing on July 7, 2014 to address the possible conflict between the Federal

Way Municipal Court no-contact order and the court's provision for exchanges.

The court issued a revised final parenting plan nunc pro tunc July 9, 2014. This

plan was identical to the June 25 plan with respect to the domestic violence

finding, the provision for joint educational decision-making, and the court's finding

of a mutually abusive relationship.

       Sesay appeals the trial court's revised parenting plan.

                                    DISCUSSION

       Sesay challenges the provision in the revised parenting plan for joint

educational decision making, arguing that the provision was precluded by the trial

court's finding that Lyles had a history of acts of domestic violence. We agree.

       We review a trial court's decisions in fashioning a permanent parenting

plan for abuse of discretion. In re Marriage of Wicklund. 84 Wn. App. 763, 770,

932 P.2d 652 (1996). In order to determine if a trial court has abused its

discretion, we look to see if its decision is based on untenable grounds or

reasons, or is manifestly unreasonable, |d. at 770, n.1. The court acts on
No. 72316-2-1/4


untenable grounds if its factual findings are unsupported by the record, jd.

However, unchallenged findings are treated as verities on appeal. In re Mahanev.

146 Wn. 2d 878, 895, 51 P.3d 776, 785 (2002). The court acts for untenable

reasons if it has used an incorrect standard or the facts do not meet the

requirements of the correct standard. In re Wicklund. 84 Wn. App. at 770, n.1.

The court acts unreasonably if its decision is outside the range of acceptable

choices given the facts and the legal standard.

       RCW 26.09.191 (1)(e) removes a trial court's discretion to require mutual

decision making by parents where they have "a history of acts of domestic

violence as defined in RCW 26.50.010(1) or an assault or sexual assault which

causes grievous bodily harm or the fear of such harm." See also, In re Marriage

of Caven, 136Wn.2d 800, 806-10, 966 P.2d 1247 (1998). As we held in In re

Marriage of Mansour, 126 Wn. App. 1, 10, 106 P.3d 768 (2004), the statute is

unequivocal. "Once the court finds that a parent engaged in physical abuse, it

must not require mutual decision-making and it must limit the abusive parent's

residential time with the child." ]d_. at 11.

       In this case, the trial court found "[a] history of acts of domestic violence

as defined in RCW 26.50.010(1) or an assault or sexual assault which causes

grievous bodily harm or the fear of such harm." CP at 25. This unchallenged

factual finding is a verity on appeal and is, moreover, supported by substantial

evidence, including testimony from both parents that Lyles had assaulted Sesay

on more than one occasion.
No. 72316-2-1/5


      The trial court expressly recognized that, based on this finding, it had no

authority to require "mutual decision-making." CP at 25. Nevertheless, in Section

4.2 (Major Decisions), the court provided that education decisions would be

made jointly, ordering that "[w]hen the child reaches school age, both parties

must agree to the school. However, unless the mother agrees otherwise, the

child's school shall not be located more than ten miles from the mother's home."

CP at 30. Because the trial court had no discretion to enter this provision, it must

be stricken.

       Sesay also challenges the trial court's finding that she and Lyles were

mutually engaged in an abusive relationship, arguing that the finding is not

supported by substantial evidence. At trial, Lyles asserted that Sesay had
physically abused him on multiple occasions. However, while Lyles's assaults on
Sesay were well documented, including photographs, for the most part Lyles
complained only that the couples verbal arguments or confrontations often
escalated to physical altercations. And although he testified that on one occasion
Sesay threw keys at him and on another grabbed a book he was reading and
threw it down, he offered no corroborating detail as to when or where these

alleged acts occurred orwhat prompted them. These unsubstantiated and
conclusory accusations do not amount to substantial evidence that would support
the trial court's finding that Lyles and Sesay were mutually engaged in an
abusive relationship. Nor is the testimony of Sesay's and Lyles's mothers about
the couple's arguments substantial evidence of a mutually abusive relationship.
No. 72316-2-1/6


      Accordingly, we remand with instructions to strike the joint decision

making provision and the finding of a mutually abusive relationship as set out in

section 4.2 of the revised parenting plan.



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WE CONCUR:




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