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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

In the Matter of the Marriage of                No. 73466-1-
ALEXA INGRAM-CAUCHI,

                         Appellant,
                                                UNPUBLISHED OPINION
                and


STEVEN STOUT,

                         Respondent.            FILED: October 31, 2016

       Schindler, J. — The child relocation act adopts a clear presumption to allow

relocation of the parent with whom the child resides a majority of the time. To rebut the

presumption, the objecting parent must show the detrimental effect of relocation

outweighs the benefit to the child and the relocating parent. The court must consider a

number of factors in determining the detrimental effect, but the statutory presumption in

favor of relocation is the standard the court must use to resolve competing claims about

relocation. Alexa Ingram-Cauchi appeals the trial court order denying her request to

relocate to California with the children. The record establishes the court ignored the

statutory presumption and contrary to the statute, the court engaged in a best interest of
the children analysis. If the court had properly applied the statutory presumption,
No. 73466-1-1/2


relocation should have been granted. We reverse the order restraining relocation,

vacate the parenting plan and the award of attorney fees, and remand.

                                         FACTS


       Alex Ingram-Cauchi met Steven Stout in 1989 while attending the University of

Washington. Her brother Pete Ingram-Cauchi also attended the University of

Washington.

       Alexa and her brother grew up in California. Her mother was a teacher. Her

father was a teacher and a school principal. Alexa's parents, her brother Pete, and

other family members live in Los Gatos, California.

       Steve grew up in Washington. His parents and his brother live in Richland and

his sister lives in Bellingham.

       Steve graduated with a bachelor of science in mechanical engineering. Steve

works full time as a design engineer for a company in the Seattle area.

       Alexa graduated with a degree in business. Alexa and her mother worked on a

curriculum designed to introduce children to technology. In 1999, Alexa and her mother

founded a California corporation, iD Tech, as a co-ed summer camp program for

children ages 7 to 17. In the first year, iD Tech started with four summer camps at

university locations in Northern California. The iD Tech summer camps focused on art

media and computer programing related to games and applications. Pete joined the
business and developed a business plan for the company. Alexa continued to live in

Seattle but traveled to California to work on iD Tech.

       In September 2000, Alexa and Steve married. In 2004, G.S. was bom. In 2007,
W.S. was born. Alexa was the primary caretaker of the children. After the children
No. 73466-1-1/3


were born, Alexa worked on the iD Tech business primarily from home. In addition to

curriculum and logistics, Alexa assumed responsibilities that allowed her to work from

home, including the iD Tech payroll and human resources. Pete assumed responsibility

for running the business in California.

       After the birth of W.S., Steve started training and participating in triathlons. Alexa

expressed concern that Steve was " 'distant'" and did not spend enough time with the

family. In 2009, Alexa and Steve engaged in marital counseling.

       In 2011, the family lived in the Capitol Hill neighborhood and the children

attended nearby schools in the Seattle School District. In August, Steve moved into a

nearby apartment. In November, Alexa filed a petition for dissolution of the marriage.

Alexa and Steve agreed to entry of a temporary parenting plan. Under the temporary

parenting plan, the children would reside with Alexa except for one night during the

week and every other weekend.

2012 Parenting Evaluation

       In February 2012, the parties agreed to the appointment of Jennifer Wheeler,

PhD as the parenting plan evaluator. On September 9, 2012, Dr. Wheeler issued a

lengthy report. The report included an account of psychological testing and interviews

with the parents, testing and interviews with eight-year-old G.S. and five-year-old W.S.,

and interviews with family, friends, treatment providers, and others. The purpose of the

report was to "assist the court in developing a Permanent Parenting Plan" consistent

with the best interests of the children.

       Dr. Wheeler stated G.S. and W.S. "are two very sweet, gentle, shy, sensitive,

and well-behaved children, who appear to be generally adjusting relatively well to their
No. 73466-1-1/4


parents' separation . . . due in large part to the effective parenting of both Alexa Ingram-

Cauchi and Steven Stout... in the aftermath of their separation." Dr. Wheeler

concludes that "[ojverall, it is my opinion that Ms. Ingram-Cauchi and Mr. Stout both

appear to be highly skilled, competent, confident, warm, loving, supportive, and effective

parents."1

       The report states Alexa has a "long-standing history of being the 'primary

parent'" and assuming greater responsibility for performing parenting functions, and her

relationship with G.S. and W.S. is "somewhat stronger and more stable than their

relationship with their father." Dr. Wheeler noted Steve had "assumed a more involved

and autonomous parenting role post-separation."

       Dr. Wheeler expressed "some concerns" about "the children's emotional

sensitivity/attunement" to Alexa and her anxiety when the children are with Steve.

       If present, such a dynamic may foster and maintain undue anxiety in the
       children, as well as potentially threaten their confidence and trust in their
       father's ability to care for and protect them.

Dr. Wheeler also identified the dynamic created by Alexa's role as the primary parent,

Steve's pattern of "learned helplessness," and their different parenting styles as a

potential risk to the emotional well-being of the children.

       Importantly, there is an additional risk to the children's emotional well-
       being, that is posed by the ongoing, maladaptive dynamic between Ms.
       Ingram-Cauchi and Mr. Stout. Historically, Ms. Ingram-Cauchi has
       assumed a more "dominant" role in the parenting of the children, including
       involvement in their school activities, as well as day-to-day decision
       making. It appears that as a result, during their marriage, Mr. Stout
       developed a pattern of "learned helplessness" with regard to the parenting
       of the children, in which he generally deferred to Ms. Ingram-Cauchi's
       authority....



       1 Emphasis in original.
No. 73466-1-1/5




       Further exacerbating their long-standing problematic parenting dynamic is
       the fact that, by all reports, Mr. Stout and Ms. Ingram-Cauchi have very
       different parenting styles: put simply, Mr. Stout regards Ms. Ingram-
       Cauchi as being "over-protective," and Ms. Ingram-Cauchi regards
       Mr. Stout as being "under-protective."

       Dr. Wheeler concluded it is in the best interests of the children to not "unduly limit

their access to either of these two loving, caring, supportive, safe, and nurturing

parents." Dr. Wheeler recommended the children eventually reside with their parents

on an equal basis but "gradually implemented, over a series of phases," to maintain the

children's stability and security by continuing to reside primarily with Alexa.

2012 Agreed Parenting Plan

       On December 5, 2012, the court entered the agreed final parenting plan. The

parenting plan provides that beginning on January 6, 2013 until the last day of school in

2015, the children would reside with Alexa except Wednesday after school until either

Friday or Sunday.2 Alexa and Steve agreed to "implement a 50/50 residential parenting

plan schedule" at the conclusion of the 2015 school year.

       After the last day of school, prior to the summer of 2015, the parents
       agree that they will implement a 50/50 residential parenting plan schedule.
       Presently the parents are unsure whether that schedule will be a 5/5/2/2
       schedule, a week on and a week off with each parent, or another schedule
       that meets the needs of the children at that point in time.


       2 The parenting plan states, in pertinent part:
       SCHOOL SCHEDULE
       Upon enrollment in school, the children shall reside with the petitioner/mother, except for
       the following days and times when the children will reside or be with the
       respondent/father:
       Week 1:      Wednesday after school or daycare* until Friday morning return to school or
                    morning care* (*if that parent elects to put the children in daycare).
       Week 2:      Wednesday after school or daycare* until 5:30 p.m. Sunday evening, return
                    to mother's home.
       The above schedule will begin on January 6, 2013 and will continue until the last day of
       school prior to Summer of 2015.
No. 73466-1-1/6


      The parenting plan states the parents agree to engage in "co-parent training to

improve their cooperative and communication skills as specified in the additional

recommendations section . . . of Dr. Jennifer Wheeler's Evaluation Report." The

parenting plan states the intent to raise the children together in Seattle.

       It is the petitioner/mother's intention to stay in Seattle and raise the
       children here with the respondent/father in spite of the first phase of the
       residential schedule, when the children will reside the majority of the time
       with her, prior to the shift to a 50/50 residential schedule in June 2015.

       After entry of the final parenting plan, Alexa assumed a number of additional

management responsibilities and spent more time at the iD Tech headquarters in

California. In early 2013, Alexa and Pete hired a consultant to design a system to

manage payroll and benefits.

       Following a trial on valuation and distribution of assets, the court entered the

decree of dissolution on February 20, 2013. On March 14, Steve sent Alexa an e-mail

to let her know he was "currently dating." Alexa responded, "I think this is great for you."

       iD Tech grew by approximately 30 percent each year. In 2013, iD Tech was

operating summer camps at 80 different campus sites throughout the United States.
       In May 2013, Alexa and Pete met with venture capital investors interested in
purchasing a percentage of the shares of iD Tech. In August, Alexa and Pete agreed to
each sell a 20 percent interest in iD Tech to the outside investors. Alexa and Pete also
decided to each contribute 10 percent of the stock they owned to create a stock option

pool for iD Tech employees. As a result, the outside investors owned 40 percent of iD
Tech, Alexa and Pete each owned 20 percent, and the employees owned 20 percent.

       After the investors purchased 40 percent of iD Tech, the company restructured

the board of directors (Board). The Board included two members of the investment
No. 73466-1-1/7


group, former Starbucks President Howard Behar, Alexa and Pete, and their friend and

business marketing consultant Matthew Baumel. The company developed a number of

new programs including iD Tech Mini Camp, a half-day technology program for children

ages six to nine; and Tech Rocket, an online program. The company also started

focusing on math, science, and engineering.

      In October 2013, a senior vice president at Google Inc. and the chief operating

officer of Facebook Inc. contacted Alexa and Pete about developing a science,

technology, engineering, and mathematics (STEM) summer camp for girls. Alexa and a

group of employees worked on designing a new STEM curriculum for a girls-only

summer camp, Alexa Cafe. Alexa worked with a number of technology companies in

Silicon Valley to develop the program. Alexa was the President of the Alexa Cafe

program. The Board viewed Alexa as crucial to the implementation and success of

Alexa Cafe.


      On January 19, 2014, Steve sent an e-mail to Alexa stating he and Meredith

Mallott were engaged. On January 21, Alexa responded:

      Steve —

      I had some time for the announcement to settle in. I do really want you to
      know that I am happy for you and Meredith.

      I wish you all the luck in the world on your new life!

      Let me know when the ceremony is and perhaps I can help the kids go
      shopping for outfits.

      -Alexa.

      On April 1, Steve sent Alexa an e-mail telling her that he and Meredith bought a

house in Snohomish County. Steve said the completion date for construction of the
No. 73466-1-1/8


house in Brier was in September. Steve asked Alexa, "[Pjlease don't mention it to [the

children] prior to me talking to them — I want this one to come from me first, I

appreciate it." On April 2, Alexa responded:

       Congratulations! It's all you...I won't say anything to the children.
       I am sure they will be happy to have this all squared away and a room to
       call their own.
       Best, Alexa.^

During work on the house in Brier, Steve lived with Meredith, her two teenage

daughters, and her seven-year-old daughter in a condominium in Bothell.

       In spring 2014, iD Tech launched the Alexa Cafe summer camp program in

Silicon Valley. The Alexa Cafe summer camp sold out by May. The Alexa Cafe

summer camp program that summer was a success. The Board planned to expand

Alexa Cafe to "ten sites across the country" the following summer.

2014 Notice of Relocation

       On July 15, 2014, Alexa filed a "Notice of Intended Relocation of Children."

Alexa stated the growth of iD Tech Camps and "opening a new division of the company,

Alexa Cafe," required her to move to Los Gatos, California and asked the court to "allow

the children to move with me." The notice states, in pertinent part:

       My brother and business partner [is] Pete Ingram-Cauchi.... We work as
       a team with regard to the overall operation of the business. As our
       business is expanding, I am having to take on additional responsibilities
       including risk management and compliance, which have previously been
       handled by Pete. I am also opening a new division of the company, Alexa
       Cafe.
               Our business is technology camps & academies for kids. We
       instruct over 35,000 students per summer season. We spend the entire
       school year in business development mode preparing for the summer
       rollout. Our responsibilities are different in the summer months than
       during the school year. During the summer, we are not in our offices as


       3 Alteration in original.
No. 73466-1-1/9


       much but in the field visiting university campuses across the country. Until
       this year, I have been responsible for oversight of 6 campuses in the
       Pacific Northwest and Pete has been responsible for the other 74
       campuses. He cannot keep up this pace, so I am taking on half of the
       campuses going forward.
              For 16 years, I have worked remotely from my home office in
       Seattle .... In the past year it has become necessary for me to travel to
       California much more often .... Even that is not nearly sufficient to fulfill
       my responsibilities.

            With the support of several executives at these [Silicon Valley] tech
       companies, we recently launched our new tech camp for girls' [sic] project:
      Alexa Cafe, and I am the President. . . .
               I have attempted to fulfill my management duties, including Alexa
      Cafe remotely, by traveling to California for a few days every week.
      However, this has become impossible. Not only do I need to be on site to
      fulfill my duties at iD Tech, but as the Co-founder of Alexa Cafe, it has
      become imperative for me to relocate to California. I simply cannot
      continue to develop a division of our company from afar. I am asking the
       court to allow the children to move with me.
              I fully understand the impact the move will have on our children. I
       am willing to pay a reasonable amount for their father to travel to
       California as well as the children's travel to the Seattle area for visits.

       Steve objected to relocation. Steve asked the court to retain the parenting plan

schedule entered on December 5, 2012. Steve asserted that "both Alexa and I have

our strengths as parents" and not "[h]aving the children's contact with either parent

would be detrimental." Steve states that if Alexa "would like to relocate then I would

agree to immediately go to a 7 on/7 off schedule so that she could travel during her

weeks off." Steve suggests Alexa "travel to California on her off weeks."

       Alexa would actually be able to do her work if we went to 50/50 now and
       she could travel to California on her off weeks. Because I do not have the
       same flexibility, it would be detrimental for my contact to be curtailed for
       Alexa's work when she is self-employed and self-directed.

       Steve questioned the timing of the notice and the need to relocate.

       Given our past agreement that we would both remain in the Seattle area
       and the fact that Alexa has worked on her business remotely for 15 years,
       it seems odd that her sudden "need" to move to California arose on the
No. 73466-1-1/10


       heels of discovering that I was engaged to be married. . . . My job will not
       allow me to relocate. Alexa is self employed and can absolutely control
       her ability to continue working in Seattle as she has since 1999.

2015 Parenting Evaluation

       Alexa and Steve agreed to appoint Dr. Wheeler as the parenting evaluator. On

November 25, 2014, the court entered an order appointing Dr. Wheeler as the parenting

evaluator to "always represent the children's best interests" and submit a report on

relocation to the court.

       On March 3, 2015, Dr. Wheeler issued a 28-page report. Dr. Wheeler states that

based on her interviews with the parents, the children, and others, "it is my opinion that

the children's relationship with their mother continues to be somewhat stronger and

more stable than their relationship with their father." Dr. Wheeler notes the different

parenting styles and strengths provide the children "with a well-rounded set of
perspectives." Dr. Wheeler states that despite their differences, both Alexa and Steve
are "highly interested, involved, skilled, competent, confident, warm, loving, supportive,

and effective parents."

       Each of these parents continues to have different parenting styles and
       respective strengths, which provides the children with a well-rounded set
       of perspectives and experiences in which to thrive. These differences
       were described in the previous report, and continue to be present during
       the current evaluation. Specifically, "...Mr. Stout and Ms. Ingram-Cauchi
       have very different parting styles: put simply, Mr. Stout regards Ms.
       Ingram-Cauchi as being 'over-protective,' and Ms. Ingram-Cauchi regards
       Mr. Stout as being 'under-protective.'"...

       Despite their differences in personality and parenting styles, both Ms.
       Ingram-Cauchi and Mr. Stout both appear to be highly interested,
       involved, skilled, competent, confident, warm, loving, supportive, and
       effective parents.145



       4Emphasis in original, italics omitted, first alteration in original.

                                                       10
No. 73466-1-1/11


       Nonetheless, Dr. Wheeler repeats concerns she previously raised in the 2012

parenting evaluation about the family dynamics.

      That said - and as described in the previous report - there continue to be
      dynamics in this family which raise concern regarding the children's long-
      term emotional well-being. Specifically, I continue to have concerns that
      the children are too emotionally attuned to their mother's feelings,
      particularly with regard to her feelings about Mr. Stout's parenting, and this
      continues to undermine the children's confidence in their father's ability to
       care for them. . . .




       This is not to say that Ms. Ingram-Cauchi is deliberately manipulating the
       children's emotions or perceptions, but rather, that she has a very strong
       influence on these children's feelings and their perceptions of the world
       around them (including their father). By all reports, Alexa is an excellent
       parent who is highly sensitive to her children's emotional needs, to an
       exceptionally high degree.[5]

       Dr. Wheeler states that in her opinion, the "best interests" of the children "will

only be served by continuing to have equal access to both of these highly skilled and

loving (yet very different) parents" because the decision to relocate "will preclude these

children from having this best possible development outcome; that is, enjoying

equivalent amounts of time, opportunities, and experiences with each of these loving

and highly effective parents."6 Dr. Wheeler states that "short of persuading" Alexa to

continue to adhere to the existing parenting plan, there is "no clear recommendation

that will meet the best interests of these children."7

       Therefore, short of persuading Ms. Ingram-Cauchi to find a way to
       proceed with the existing Agreed Parenting Plan (Opinion #1, below),
       there is no clear recommendation that will meet the best interests of these
       children.I8]


       5 Emphasis in original.
       6 Emphasis in original.
       7 Emphasis in original.
       8 Emphasis in original.


                                              11
No. 73466-1-1/12




       Dr. Wheeler presented three options. "Opinion 1:" maintain the 2012 final

parenting plan, "Opinion 2A:" relocation to California, and "Opinion 2B:" remain in

Washington.

       For Opinion 1, maintain the December 2012 parenting plan, Dr. Wheeler

recommends a shared week on/week off residential schedule. Dr. Wheeler states it is

"unfortunate and disappointing" that Alexa cannot "tailor her new career responsibilities"

by continuing the status quo.

       [I]t continues to be the opinion of this examiner that the best interests of
       the children are served if they resided equally with both parents, as
       described in their Agreed Parenting Plan entered in December 2012.
       Specifically, it is my opinion that, the children should reside with each
       parent on a week on/week off basis, effective in June 2015. As described
       in the previous report: "...it is a potential risk to the children's long-term
       emotional well-being to unduly limit their access to either of these two
       loving, caring, supportive, safe, and nurturing parents. In this family, it is
       my opinion that the children's best interests are served by providing them
       with ample access to each of their parents, thus allowing each parent to
       expose them to their different yet equally valuable parenting styles..." It
       remains my opinion that the children's best interests are served by a
       shared, 50/50 residential arrangement.191

       According to Dr. Wheeler, neither Opinion 2A, relocate the children to California;

nor Opinion 2B, require the children to remain in Washington, is in the best interest of

the children.

       Dr. Wheeler states that if the children relocate to California as stated in Opinion

2A, "some of the children's best interests could be served" because "this arrangement

may minimize emotional risks to the children associated with their close bond with their




       9 Italics omitted, some alterations in original.


                                                      12
No. 73466-1-1/13


mother."10 But Dr. Wheeler expressed concern about the "negative impact of this

arrangement on the children's relationship with their father."

       In addressing Opinion 2B, Dr. Wheeler states that "some of the children's

interests can be served if they do not relocate with their mother, and reside in

Washington," to protect the children from "possible alienation from their father" while

also "maintaining their strong bond with their mother."11

       In many ways, this option may pose the least risk to the children's long-
       term emotional well-being, by: (1) protecting their relationship with their
       father from further alignment with their mother, and possible alienation
       from their father, if they were to relocate to California; (2) continuing to
       expose them to the opportunities and experiences associated with their
       father's parenting style, while also maintaining their strong bond with their
       mother (which would not be expected to diminish, even ifthey were
       physically apart for two weeks at a time).

       Dr. Wheeler states that "[a]nother alternative" is to "provide the non-primary

residential parent with increased residential time over the course of the year... to

provide a greater proportion of the summer residential schedule to the parent who is not

primary during the school year."

       In conclusion, Dr. Wheeler recommended the children "continue to reside equally

with both parents, as the parties had previously agreed in the Agreed Parenting Plan

entered in December 2012." But if Alexa "is unable to maintain a 50/50 residential

schedule due to her work demands," Dr. Wheeler recommended the children "reside in

Washington with theirfather, with up to 50% residential time for mother as her schedule

allows."

       Although there would certainly be some short-term adjustments for the
       children under #2B, it is unlikely that mother's parenting influence would


       10 Emphasis in original.
       11 Emphasis in original.


                                             13
No. 73466-1-1/14


       significantly diminish under this arrangement, due to Ms. Ingram-Cauchi's
       strong bond with the children.



       . . . Each of these parents offers unique strengths to their children, and
       both of their parenting influences are significant to the children's long-term
       emotional well-being. Therefore, given the strength of mother's influence,
       if mother relocates then it is my opinion that the best way to promote this
       balance is to increase, rather than decrease, father's opportunities to exert
       his positive parenting influence.

March 2015 Trial

       A number of witnesses testified at the trial on relocation including Steve, Dr.

Wheeler, psychologist Dr. Bruce Olson, Alexa, her brother Pete, and family members,

friends, and coworkers. The court admitted into evidence the 2012 and 2015 parenting

evaluation reports prepared by Dr. Wheeler.

       Steve testified that if the children are "forced to relocate to California," they will

lose out on time with "their father, who is a huge part of their life,. . . and they will

benefit from continuing to have . . . what I provide for them as ... a father." Steve

testified that "what's best for my kids" is to not relocate to California with Alexa.

       I believe it's in their best interests. They've got their friends here. They've
       got their schools that they have gone to for a long time. Simply the fact
       that, you know, I'm very certain that their mother can stay an active part of
       their lives even though she claims that her business needs her to move
       down there. So I'm very confident they're going to be best served here
       and I'm absolutely passionate about that.

       Steve testified that even if the "new [Board] is saying 'You have to relocate to

California,'" he believed the request to relocate with the children was in "bad faith"

because "[t]here's always choices." Steve believed Alexa could continue to live in
Seattle and commute to California. "She has worked from the Seattle area for this




                                               14
No. 73466-1-1/15


company for 16, 17 years since the time that she founded that company with her

family."

       I mean, she's been — she was the founder of this company. If there was
       any sale of this company, she knew what she was getting into. . .. Alexa
       has always found a way to make things work for what she thinks is — she
       — she wants to make happen. And so if she wants to move to California,
       then that's a choice. If — she would have made sure things progress in a
       way if she — if she intended to stay true to our parent agreement, which
       — so we signed for the best interests of our kids so we could co-parent
       here in the Seattle area, she would — she would — we would find a way
       not to be here right now talking about this.

       Steve recognized the difference in their parenting styles but did not believe Alexa

interfered with his strong bond with the children.

       I have unconditional love for them. I mean, that comes first and foremost.
       The kids are lucky that they have that in both parents. .. .

              They know I'm their dad. They know that I'm the — that I'm, you
       know, their dad at the household, so there's no confusion to them about
       that they're connected with me very, very closely. We have an
       extraordinarily strong bond. It might be a longer tether than with their
       mother's bond, but it's a — it's a strong bond just the same, and the kids
       are going to benefit greatly from me.

       Dr. Wheeler testified both parents were very skilled, loving, and supportive with

different strengths and different parenting deficits.

       Both of these parents are very strong parents, very skilled, very loving,
       very supportive. They're quite different from one another. They each
       bring different strengths and different deficits, different parenting deficits to
       the picture, and so it was my opinion that the children would benefit most if
       they had a balance of each of the influences of each of these strong,
       supportive parents.

       Dr. Wheeler rejected the claim that any "deficits" she addressed in the report

"would potentially harm the children." Dr. Wheeler testified the deficits were relatively




                                              15
No. 73466-1-1/16


small. "[I]n this family anytime we're talking about deficits, we're talking about relative.

This is a very skilled, effective family, so we're talking small deficits in the deficit area."

       [A] confusing thing about this family is, again, everything is so relative, that
       both parents are very loving, very gentle, very warm, very emotionally
       attuned. It's just Alexa is that much more of all of those qualities relative
       to Father. But relative to, you know, most fathers, Steve is an
       exceptionally sensitive father.

              . .. We're talking about two highly supportive, highly skilled, highly
       involved parents. One of them does go, you know, way above and
       beyond what is already excellent, supportive parenting. So when you
       compare those two already highly supportive parents, yes, one of them
       does generally come out ahead. And so that's sort of this unusual
       dynamic in this family is we're — we're not talking about one parent that's
       negligent and incapable. We're talking about two very attentive and very
       capable parents.

       Dr. Wheeler testified that the dynamic of alignment or affinity of Alexa with the

children was not uncommon.

       [I]t's not uncommon, and not just in divorced families, in all families. It's
       not at all uncommon for children to have particular alignments or affinities
       with either parent at different points in the course of their development. In
       early years, it's often Mother. In later years, it can be Father. It can vary
       by gender, it can vary by age, it can vary b[y] personalities and
       temperaments.
              I think there is quite a bit of that going on in this family. The
       children have personalities and temperaments that are much similar to
       Alexa's in terms of their anxiety and perfectionism, so I think that there is
       some of that in their emotional attunement.


       In response to whether Dr. Wheeler considered "the mother's circumstances in

this potential move," Dr. Wheeler testified she accepted Alexa's position that she

needed to relocate but "it just seems like there could have been another way for

everyone's needs to have been met without the children having to take a risk of losing

their relationship with their father."




                                               16
No. 73466-1-1/17


       Dr. Wheeler testified it was in the "best interests" of the children to have equal

access to both parents.

       [M]y opinion in terms of what's in the best interests of the children is that
       whatever arrangements can be made, however it looks like, if at the end of
       the day these children have equal quality access to both parents. That's
       in their best interests. So sticking with the plan they have would be one
       version of that. I recognize that that's not an option given the relocation,
       but that is my opinion about what's in their best interests.

       Dr. Wheeler testified the children should remain in Washington because Alexa

had more flexibility and her bond with the children would not be diminished.

       [T]he reason why I think the kids would be more likely to have more
       success if they stayed in Washington is that although I recognize her
       flexibility is not as flexible as it once was, because she's the owner of her
       company and the president of her company and she has been doing it for
       so long, there is a precedent set for Mother to do more traveling away
       from work versus that's not a precedent that's set for Father and his job.
       So I feel like there's more opportunity for Mother to maximize more of that
       residential schedule relative to Father if the children resided in
       Washington.

       Psychologist Dr. Bruce Olson testified that an "alignment" between a child and a

parent is a "naturally occurring phenomenon." Dr. Olson testified that Alexa's

"attunement" to the children as described in Dr. Wheeler's report is not a problem. "I

would not see that as a problem. I think in a parenting situation, that's a good thing."

Because there are "a lot of variables that occur in a parent's life and a child's life, a lot of

changes that occur," it is "normal" for a child to "flow from attunement to alignment to

affinity over the course of time between both parents." Dr. Olson said there is "no

predictive likelihood" that alignment or attunement with one parent leads to parental




                                              17
No. 73466-1-1/18


alienation of the other parent. According to Dr. Olson, "alienation of one parent from the

children . . . isn't a natural sequence that inevitably has to occur."

       [T]hese are very subjective — very subjective things. And I don't think as
       psychologists we have much ability to predict those things. And I think the
       literature would suggest that we don't — we don't have the ability to
       predict those things.

       Alexa testified that iD Tech has grown from "basically three core employees and

some summertime instructors" to currently 150 full-time employees and approximately

1,600 part-time employees and an expectation that 45,000 students would attend iD

Tech summer camps in 2015.

       Alexa described the changes and demands of the company since entry of the

2012 parenting plan. Alexa testified that the success and expansion of iD Tech and

Alexa Cafe requires her to relocate to California. Alexa explained why she could not

work on an "every-other-week basis" and her unsuccessful attempts to do so.

              I've tried telecommuting as far as Skyping, Google Hangouts. I've
       flown down there this fall for three weeks, sometimes four weeks out of
       the month. On the days that I don't have the children, I've tried so many
       different things. And it's very frustrating to my employees. It's very
       frustrating. I mean, I can't imagine — I've managed this long to put a
       Band-Aid on something and it's just getting to that point where
       something's got to give and I have to make a decision.

       In response to a question posed by the court, Alexa testified that if the children

could not relocate with her to California, it would be very difficult for the children to live

with her in the summer. "[T]hat's the three months that we have for our program. So

that would be immensely difficult."

       Pete testified that Alexa cannot "continue in her role at iD Tech if she's not living

full-time in California." Pete described the changes in the business after the outside




                                               18
No. 73466-1-1/19


investors purchased shares in the company in 2013.

       [W]e brought on a board of directors to help steer — steer us forward.
       We've — as I mentioned before, we had to go — do much more — much
       bigger investment in leadership development and training. We're rolling
       out, you know, a whole host of new products all based on STEM —
       science, technology, engineering, and math. But rolling out those formats
       all over the country and all over the world, those are all very significant
       changes. . . . [T]he rules have changed and we're moving much faster and
       decision making has to be — it has to be faster and crisper and we all
       have to be on the same page all the time.

       The court asked Pete whether Alexa could continue to live in Seattle and spend

half of every week in California.

       So my focus, of course, is on kids. And there's legal factors I have to look
       at. Bottom line is my decision will be whether the kids move or stay . . .
       and [Alexa] decides to be there a half a week every week.

Pete told the court the suggestion that Alexa work part time in California was not a

viable option. "[W]e've tried .... It's not as effective. . . . It's just simply not. So it — it

hurts us." Pete testified Alexa could not meet her management responsibilities unless

she was working at iD Tech full time in California. Pete testified that from the Board's

perspective, the move to California was "nonnegotiable."

       Board member and business marketing consultant Matthew Baumel testified that

the Board expects Alexa "to be there and to be a leader" and be "the face of Alexa

Cafe." Baumel said it was "extremely important" to have Alexa in the California office

every day and was "really nonnegotiable."

       Alexa asked the court to allow Board member Howard Behar to testify for the

"very limited purpose" of addressing the expectations of the Board and the need to

relocate to California.

       [Behar] will testify, as an offer of proof, that he believes that it's necessary
       for Ms. Ingram-Cauchi to be in California. He would say that he's joined


                                               19
No. 73466-1-1/20


      the board because he's excited about the girls' STEM initiative. It's
      important and critical that Ms. Ingram-Cauchi be in the office on a daily
      basis to manage the rollout and to provide day-to-day leadership for the
      girls' STEM technology initiative. He would testify that the board of
      directors for iD Tech has an expectation for the entire executive team to
      be on location at headquarters in California. He would testify that, given
      the size and growth of the company, the executive management
      supervision must be hands-on, requiring the cofounder and president to
      be on the ground in California at the headquarters on a daily basis.

             . . . And he would say that it's critical to the success and future
       growth of the company and current success of the company for the
       cofounder and president to be in California on a day-to-day basis. And he
       will testify the decisions which affect the entire company must be made on
       a timely basis requiring the cofounder, president to be at the California
       headquarters and that it's not possible to manage and oversee a company
       of this size by telephone or Skype or some type of technological
       intervention.

       The court denied the request to allow Behar to testify.

       Steve testified in rebuttal. In response to a question from the court about the

residential schedule ifthe children were "allowed ... to go to California," Steve said he

would want "[b]asically all summer" and all vacations and three-day weekends during

the school year.

       In closing argument, Alexa agreed the children could reside with Steve the entire

summer.


              [Alexa] heard Mr. Stout's testimony and she took that to heart and
       she is now proposing, she's changed her proposed parenting plan to say
       that if he doesn't want to come down during the winter for several weeks
       during the winter, then why doesn't he just have the entire summer?
       On April 20, 2015, the court entered an order and extensive findings offact on
the objection to relocation. The order does not permit Alexa to relocate with the children
to California.




                                            20
No. 73466-1-1/21



       On May 7, the court entered a final parenting plan. The parenting plan allows the

children to "reside as close to 50/50 with both parents" as recommended by Dr.

Wheeler. The parenting plan states the court would have "preferred to impose a week

on/week off" schedule that would have "allowed the children to remain in the school in

which they are currently enrolled. No doubt, this would have been the optimal plan and

in the best interest of the children," but Alexa said she "could not accommodate that

plan due to her work schedule."

       Pursuant to the 12/5/2012 Parenting Plan and recommendations of Dr.
       Wheeler's 3/3/2015 evaluation report, the children shall reside as close to
       50/50 with both parents. This Court would have preferred to impose a
       week on/week off parenting plan switching on Wednesdays as discussed
       during the trial. This plan would have allowed the mother to have three
       consistent days in the office every week and see her children every week.
       This plan would have also allowed the children to remain in the school in
       which they are currently enrolled. No doubt, this would have been the
       optimal plan and in the best interest of the children. However, mother
       stated that she could not accommodate that plan due to her work
       schedule. Although the court still believes that plan is feasible and is
       disappointed that the mother chose not to try this alternative, the court
       must take the mother at her word that her work needs are too pressing to
       accommodate such a schedule.


       The court notes that if Alexa decides she "can accommodate" the "50/50 plan

switching on Wednesdays for her children's benefit," the court will retain jurisdiction for

one year "for the sole purpose of implementing a 50/50 parenting plan switching on

Wednesdays without the need for an adequate cause finding."

       Alexa appeals the order restraining relocation, the parenting plan, and the award

of attorney fees to Steve.




                                             21
No. 73466-1-1/22



                                         ANALYSIS

       Alexa contends the court erred by ignoring the statutory presumption allowing her

to relocate with the children to California and adopting the best interest analysis of Dr.

Wheeler.


       The Washington State legislature enacted the child relocation act (Relocation

Act) in 2000. Laws of 2000, ch. 21; RCW 26.09.405-.560. The Relocation Act

establishes a clear presumption in favor of allowing the parent "with whom the child

resides a majority of the time" to relocate. RCW 26.09.430, .520. RCW 26.09.520

states, "The person proposing to relocate with the child shall provide his or her reasons

for the intended relocation. There is a rebuttable presumption that the intended

relocation of the child will be permitted."

       The presumption in favor of allowing relocation both incorporates and gives

substantial weight to the traditional presumption that in making the decision to relocate,

a fit parent is acting in the best interest of the children. In re Marriage of Horner, 151

Wn.2d 884, 895, 93 P.3d 124 (2004) (citing In re Custody of Osborne. 119 Wn. App.

133, 144, 79 P.3d 465 (2003)). In Horner, the Washington Supreme Court emphasized

that the presumption in favor of the "interests and circumstances of the relocating

parent" is "[p]articularly important." Horner, 151 Wn.2d at 894.

       Under the Relocation Act, the burden of persuasion and the burden of production

is on the parent opposing relocation. In re Marriage of McNaught, 189 Wn. App. 545,

556, 359 P.3d 811 (2015). To rebut the presumption, the parent entitled to residential




                                              22
No. 73466-1-1/23


time must demonstrate that "the detrimental effect of the relocation outweighs the

benefit of the change to the child and the relocating person." RCW 26.09.520.

      [The Relocation Act] requires proof that the decision of a presumptively fit
      parent to relocate the child, thereby interfering with residential time of a
      parent or visitation time with a third party that a court has previously
      determined to serve the best interests of the child, will in fact be harmful to
      the child—and in fact, so harmful as to outweigh the presumed benefits of
      relocation to the child and relocating parent.

Osborne, 119Wn. App. at 146-47.

      The statute identifies 11 factors the court must consider. RCW 26.09.520(1)-

(11). The 11 factors are:

              (1) The relative strength, nature, quality, extent of involvement, and
      stability of the child's relationship with each parent, siblings, and other
      significant persons in the child's life;
              (2) Prior agreements of the parties;
              (3) Whether disrupting the contact between the child and the
      person with whom the child resides a majority of the time would be more
      detrimental to the child than disrupting contact between the child and the
      person objecting to the relocation;
              (4) Whether either parent or a person entitled to residential time
      with the child is subject to limitations under RCW 26.09.191;
              (5) The reasons of each person for seeking or opposing the
      relocation and the good faith of each of the parties in requesting or
      opposing the relocation;
              (6) The age, developmental stage, and needs of the child, and the
      likely impact the relocation or its prevention will have on the child's
      physical, educational, and emotional development, taking into
      consideration any special needs of the child;
              (7) The quality of life, resources, and opportunities available to the
      child and to the relocating party in the current and proposed geographic
      locations;
             (8) The availability of alternative arrangements to foster and
      continue the child's relationship with and access to the other parent;
             (9) The alternatives to relocation and whether it is feasible and
      desirable for the other party to relocate also;
             (10) The financial impact and logistics of the relocation or its
      prevention; and




                                            23
No. 73466-1-1/24


                 (11) For a temporary order, the amount of time before a final
        decision can be made at trial.


RCW 26.09.520.

        The factors are "not weighted" or listed in any particular order. RCW 26.09.520;

Horner, 151 Wn.2d at 894. The factors "serve as a balancing test between many

important and competing interests and circumstances involved in relocation matters."

Horner, 151 Wn.2d at 894.12 But the presumption "provides the standard the trial court

uses at the conclusion of trial to resolve competing claims about relocation." McNaught,

189 Wn. App. at 556.

        We review the trial court decision to deny relocation for abuse of discretion.

Horner, 151 Wn.2d at 893. A decision is manifestly unreasonable if it is outside the

range of acceptable choices given the facts and the applicable legal standard. Horner,

151 Wn.2d at 894. A decision is based on untenable grounds if the factual findings are

unsupported by the record. Horner, 151 Wn.2d at 894. A decision 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. Horner. 151 Wn.2d at 894.

        Alexa argues the record shows the trial court correctly states but ignores the

statutory presumption that allows her to relocate with the children to California. Alexa

asserts the court also erred in engaging in an analysis that focuses on only the best

interests of the children and the relationship with Steve. Steve concedes the decision



         12 The court in Horner notes that many of the child relocation factors refer to the interests and/or
circumstances of the relocating parent, including factor 2, prior agreements of the parties; factor 5, the
reasons each parent is seeking or opposing the relocation and the good faith of each of the parties in
requesting or opposing the relocation; factor 7, the quality of life, resources, and opportunities available to
the children and to the relocating parent in the current and proposed geographic locations; and factor 10,
the financial impact and logistics of the relocation or its prevention. Horner, 151 Wn.2d at 895 n.10; RCW
26.09.520(2), (5), (7), (10).


                                                      24
No. 73466-1-1/25


"is lockstep with" Dr. Wheeler but asserts the court did not abuse its discretion in

applying the presumption and considering the statutory factors. We disagree.

       While the trial court correctly states Alexa is "entitled to the rebuttable

presumption that the intended relocation of the children will be permitted," the findings

show the court did not apply the presumption in evaluating the statutory factors or

resolving the competing claims about relocation.

       The record also shows the court improperly focused on only the best interests of

the children. The Relocation Act "shifts the analysis away from only the best interests of

the child to an analysis that focuses on both the child and the relocating person."

Horner. 151 Wn.2d at 887;13 RCW 26.09.520. Here, as in Horner, the trial court's

repeated reference to only the best interests of the children is contrary to the standard

for a relocation decision. Horner, 151 Wn.2d at 894.

       The court relied heavily on the parenting evaluations and the testimony of Dr.

Wheeler in analyzing the statutory factors under RCW 26.09.520 and deciding whether

to allow relocation. The court finds the 2012 parenting evaluation and the 2015

parenting evaluation "thoroughly completed" and the testimony of Dr. Wheeler "credible

and quite thoughtful." Throughout the findings and consideration of the 11 statutory

factors, the court repeatedly cites Dr. Wheeler and the best interest of the children to

conclude 7 factors weighed against relocation, 1 factor was neutral, and 1 factor

weighed in favor of relocation.14




       13 Emphasis added.
         14 Two of the statutory factors, factor 4 and factor 11, did not apply. Factor 4 addresses
residential limitations under RCW 26.09.191. RCW 26.09.520(4). Factor 11 relates to a temporary order.
RCW 26.09.520(11).


                                                 25
No. 73466-1-1/26


       In concluding factor one, "[t]he relative strength, nature, quality, extent of

involvement, and stability of the child's relationship with each parent, siblings, and other

significant persons in the child's life"15 does "not weigh in favor or against relocation,"

the court ignores the presumption and adopts Dr. Wheeler's conclusion that "consistent

contact with both parties is necessary for the best interest of the children."16

       Both parents have very strong relationships with the children. The
       overwhelming consensus by the witnesses is that the children are highly
       bonded with both parents. While each parent has a different parenting
       style, each parent is highly involved and thus consistent contact with both
       parties is necessary for the best interest of the children.

       The findings also state the children "have lived in Seattle their entire lives" and

both "are quite social," they have good friends in school, and they are involved in soccer

and ballet, "participating in and getting leading roles in the Nutcracker."

       The court acknowledges Alexa has a "stronger and more stable" relationship with

the children but relies on Dr. Wheeler's opinion that "this is, in part, due to the narrative

that mother is a 'better' parent that has been internalized by the children."

       In addressing factor two, the "[p]rior agreements of the parties,"17 the court

concludes this factor "weighs against the children being relocated to California." The

court cites the parties' agreement "to raise the children in Seattle and that during the

dissolution, the mother said she would not move the children far away from the father."

The court does not take into consideration the presumption that allows Alexa to move

with the children, the need to relocate to California, or that Steve had moved to

Snohomish County.



       15 RCW 26.09.520(1).
       16 Emphasis added.
       17 RCW 26.09.520(2).


                                              26
No. 73466-1-1/27


       In considering factor three, "[w]hether disrupting the contact between the child

and the person with whom the child resides a majority of the time would be more

detrimental to the child than disrupting contact between the child and the person

objecting to the relocation,"18 the court adopts the concerns of Dr. Wheeler as

expressed in the report related to "family dynamics" and " 'the potential negative impact

on the children of losing day-to-day contact with the father.'"

       In the September 2012 report, Dr. Wheeler noted, "[l]n this family, it is my
       opinion that the children's best interests are served by providing them with
       ample access to each of their parents .. . .["]

       In the recent report, Dr. Wheeler described continual concerning family
       dynamics that could have long term effect on the children's emotional well-
       being: the children are excessively attuned to their mother's feelings,
       particularly with respect to her perception of the father's parenting, and
       this continues to undermine the children's confidence in the father's ability
       to care for them; they have become highly aware of the differences
       between their parent's households and in their minds, the mother's way is
       "right" and father's way is "wrong."... Dr. Wheeler further explained that
       mother's actions are not necessarily intentional but that she has a
       "blindspot" about the ways in which she devalues the father's parenting
       role and the effect it has on her children. .. . Although the Court doubts
       that mother is undermining father deliberately, this pattern is highly
       concerning to the Court. In addition, Dr. Wheeler indicates concerns
       regarding the children's "burgeoning perfectionism and associated rigid
       (black or white) thinking." Dr. Wheeler expressed concerns that the
       children would develop unduly concrete notions of good/bad instead of
       more adaptive flexible thinking skills and the ability to view a situation from
       multiple perspectives. . . .

       ... Dr. Wheeler opined: "[T]he primary concern for the children relocating
       to California is the potential negative impact on the children of losing day-
       to-day contact with the father, particularly given the problematic dynamics
       of this family, which are already marginalizing the father's parenting role.
       Ifthe dynamic is not effectively intervened upon, such alignment could
       make these children increasingly vulnerable to becoming "alienated" from
       their father.!19'




       18 RCW 26.09.520(3).
       19 Some alterations in original.


                                             27
No. 73466-1-1/28


       The court agreed with Dr. Wheeler that disrupting contact with the mother would

be less detrimental.


       Conversely, Dr. Wheeler does not find that there would be any danger of
       any long-term negative impact on the mother's relationship with her
       children if they stayed in Washington. She testified although the children
       would experience some initial sadness, given the strength of their bond
       and assurance that there would be regular and consistent
       visits/communication, the mother-child relationship would stay intact.

       The court's conclusion that "[t]his factor weighs strongly against relocating the

children to California" ignores the presumption and is based on speculative concerns.

Dr. Wheeler testified that the concerns addressed in her report were relative and

"small." The children's pediatrician described the family dynamics as different parenting

styles that are " 'very common'" with " 'no red flags.'" Dr. Wheeler's 2015 report states:

       Regarding the dynamic where mother regards father as "under-attentive,"
       and father regards mother as "over-attentive," [the children's pediatrician]
       said, "That is how they see each other... mom might be overly-concerned,
       but she listens and doesn't push me.... their complaints of each other are
       very common in parental values... there are no red flags for me."1201

There is no dispute that Alexa has been the primary caregiver, that she has a stronger

bond with the children, and that there is no evidence of alienation.

       The court found statutory factors 5, 6, 8, 9, and 10 weighed against relocation.

Again, the record shows the court ignores the statutory presumption and uses a best

interest analysis.

       In considering factor five, "[t]he reasons of each person for seeking or opposing

the relocation and the good faith of each of the parties in requesting or opposing the

relocation,"21 the court finds Alexa's reasons for moving to California were in good faith.



       20 Some alterations in original.
       21 RCW 26.09.520(5).


                                             28
No. 73466-1-1/29


However, the court finds indications of "bad faith." Specifically, the court criticizes Alexa

because she did not try a 50/50 residential schedule arrangement and notes the request

for relocation was filed before implementation of a 50/50 residential schedule the next

year.

        The court finds Alexa "has lived in Seattle with her family for the last 17 years,

and has been able to successfully balance her business and family demands." The

court acknowledges there is "[n]o doubt" that "Board members or other members of the

company have placed pressure on the mother to move to California." Contrary to the

undisputed evidence, the court finds "no evidence ... of any Board mandate that
mother move to California or negative consequence to her position if she remained in

Seattle." The unrebutted testimony established significant "negative consequences"

and that moving to California was "nonnegotiable." Pete testified Alexa could not meet
her responsibility to manage human resources, payroll, risk management, orAlexa Cafe
by working remotely. Pete testified thatfrom the Board's perspective, it was
"nonnegotiable" that Alexa move to California. Baumel testified it was "really
nonnegotiable" that Alexa move to California.

        We also note the court also erred in excluding the testimony of Board member

Howard Behar. The court did not properly consider the Burnet factors before excluding

his testimony. Keck v. Collins. 184 Wn.2d 358, 369, 357 P.3d 1080 (2015) (citing
Burnet v. Spokane Ambulance. 131 Wn.2d 484, 933 P.2d 1036 (1997)). Before

excluding witness testimony,

        the trial court must explicitly consider whether a lesser sanction would
        probably suffice, whether the violation at issue was willful or deliberate,




                                               29
No. 73466-1-1/30


       and whether the violation substantially prejudiced the opponent's ability to
       prepare for trial.

Jones v. City of Seattle. 179 Wn.2d 322, 338, 314 P.3d 380 (2013) (citing Burnet, 131

Wn.2d at 494).

       The court denied Alexa's request to call Behar to testify about the Board

mandate that Alexa move to California. The record establishes the court did not

consider whether the failure to timely disclose the testimony of Behar was willful.

Jones, 179Wn.2dat345.22

       In considering factor six, "[t]he age, developmental stage, and needs of the child,

and the likely impact the relocation or its prevention will have on the child's physical,

educational, and emotional development, taking into consideration any special needs of

the child,"23 the court notes Dr. Wheeler's finding that" 'both parents appear skilled at

supporting both of the children's cognitive, social and emotional development.'"

Nonetheless, the court weighs this factor against relocation in order to protect the

relationship with the father.

       Quoting from Dr. Wheeler's report, the court finds it should " 'intervene[ ]'" in the

" 'dynamic'" that Alexa "has engaged in behavior (consciously or unconsciously) that
has had a negative emotional impact on the children," making the children " 'appear to

be anxiously monitoring [Steve's] behaviors and home environment.'" But the opinion

the court relies on is speculative. Again, as Dr. Wheeler made clear, the parental

deficits she identified in her report were relative and minor.

       22 The court ruled, in pertinent part:
                I think that since he was never disclosed and there is clearly substantial prejudice
       being thatwe're in the middle oftrial, Idon't think a lesser sanction of having him be
       deposed and testifying tomorrow is adequate. Ithink that would be —you know, it's
       really a little bit trial by ambush. So I'm not going to allow his testimony.
       23 RCW 26.09.520(6).


                                                     30
No. 73466-1-1/31


       Further, without regard to the statutory presumption, the court concludes that

because Steve recently moved to Brier, it "seems unnecessary to add a move to

California when these children have just adjusted to their new situation."

       Factor eight considers "[t]he availability of alternative arrangements to foster and

continue the child's relationship with and access to the other parent."24 Factor nine

considers "[t]he alternatives to relocation and whether it is feasible and desirable for the

other party to relocate also."25

       The court finds factor eight and factor nine weigh against relocation because

Alexa "has an alternate arrangement to foster a balanced relationship with the children

without impacting the father's relationship with the children: she can reside in California

with a midweek week on/week off basis ... so that there are consistent three days a

week in the office." The court finds "this would have been a reasonable alternative to at

least try." The court finds Alexa had not "tried this as an alternative" and "[t]his very well

may be a solution to the heightened demands at work." The court finds Steve "cannot

relocate" because he is employed in Washington, "recently built a home in the area,"

and "has a fiance who has a shared custody arrangement for her three children" in

Washington.

       The court findings not only ignore the statutory presumption that allows relocation

and the undisputed testimony that Alexa tried commuting to California and a week-

on/week-off schedule was not feasible, but also violate RCW 26.09.530. RCW

26.09.530 states:

       In determining whether to permit or restrain the relocation of the child, the
       court may not admit evidence on the issue of whether the person seeking

       24 RCW 26.09.520(8).
       25 RCW 26.09.520(9).


                                              31
No. 73466-1-1/32


       to relocate the child will forego his or her own relocation if the child's
       relocation is not permitted or whether the person opposing relocation will
       also relocate if the child's relocation is permitted. The court may admit
       and consider such evidence after it makes the decision to allow or restrain
       relocation of the child and other parenting, custody, or visitation issues
       remain before the court, such as what, if any, modifications to the
       parenting plan are appropriate and who the child will reside with the
       majority of the time if the court has denied relocation of the child and the
       person is relocating without the child.

       In considering factor 10, "[t]he financial impact and logistics of the relocation or

its prevention,"26 the court finds Alexa has a "high net worth that allows her much

flexibility" to "fly freely between Seattle and California with little impact on her finances."

The court finds Alexa has the "flexibility in the hours she works so [she] can create long

weekends or be at significant scheduled children's activities during the week." The

court finds Steve "has less flexibility in his job" and limited paid time off.

       Finally, while the court concludes factor seven, "[t]he quality of life, resources,

and opportunities available to the child and to the relocating party in the current and

proposed geographic locations"27 weighs in favor of relocation, the court does not apply

the statutory presumption. Instead, the court finds, "Clearly, it would be easier for the

mother if she relocated to California with her children."

       In sum, because the trial court did not apply the statutory presumption that allows

relocation, improperly used a best interest analysis, and ignored the evidence, we

conclude the court abused its discretion in denying the request to relocate and entering

the order that prevents the children from relocating to California with Alexa. If the court

had properly applied the statutory presumption, the request to relocate should have

been granted.


       26 RCW 26.09.520(10).
       27 RCW 26.09.520(7).


                                               32
No. 73466-1-1/33


      Alexa also argues the court erred in awarding fees to Steve without making a

finding of financial need. We agree. Under RCW 26.09.140, a trial court has the

discretion to award reasonable attorney fees in a child relocation matter. But the

decision to award attorney fees under RCW 26.09.140 must be "based upon a

consideration that balances the needs of the spouse seeking fees against the ability of

the other spouse to pay." In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240

(1999). Here, neither party filed a financial declaration. The court found there is "no

question that mother has the financial ability to pay" but had no basis to address the

financial need of Steve.

       We reverse the order denying relocation, vacate the parenting plan, vacate the

award of attorney fees, and remand.




                                                 y.Qi^irsflSL,
WE CONCUR:




                                                          ^% J .




                                            33
