                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           October 17, 2017



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    In the Matter of the Marriage of:                                  No. 49229-6-II

    TOMI LEE INGERSOLL,

                          Petitioner,

           v.                                                   UNPUBLISHED OPINION

    JOHN PATRICK INGERSOLL,

                          Respondent.


          MAXA, J. – John Ingersoll appeals the trial court’s parenting plan entered in a dissolution

action regarding his marriage to Tomi Ingersoll. The parenting plan designated Tomi1 as the

primary residential parent of John and Tomi’s two children and placed limitations on John’s

contact with the children under RCW 26.09.191(3)(c) based on a finding that he had an alcohol

problem that affected his ability to parent.

          We hold that (1) the trial court was not required to make a detailed finding that John’s

alcohol problem would cause specific harm to the children to impose a limitation on his conduct

under RCW 26.09.191(3)(c), (2) substantial evidence supported the trial court’s finding that

John’s alcohol problem affected his ability to parent and warranted a limitation on his contact

with the children, (3) substantial evidence supported the trial court’s finding that Tomi did not


1
    To avoid confusion, first names are used to identify John and Tomi. No disrespect is intended.
No. 49229-6-II


have a history of acts of domestic violence, and (4) the trial court did not improperly base its

designation of Tomi as the primary residential parent on her status as the primary residential

parent in the temporary parenting plan.

       Accordingly, we affirm the trial court’s parenting plan.

                                              FACTS

       John and Tomi were married in 2000. During their marriage they had two children. By

2012, the marriage had deteriorated and the couple had several intense arguments. Once, Tomi

threatened to kill herself with a knife and then threatened to kill John, although John just laughed

at Tomi’s threats. Another time Tomi kicked open the bathroom door during an argument and

then repeatedly hit John’s chest after he grabbed her. Witnesses also claimed that Tomi choked

John at a family gathering, although she denied that she choked him. John once held his pistol to

his head after an altercation with Tomi.

       During this tumultuous time John was drinking regularly, which increased the conflicts.

Tomi and John had gone to a group meeting for alcoholics and their affected family members,

but the meetings became a point of contention. The frequent and violent fights frightened Tomi

to the point that she feared for her life. She eventually got a friend’s help to flee the house and

she went with the children to a shelter. Following several short-term moves, Tomi moved with

the children to live near her parents in Alaska.

       Tomi filed a dissolution action in Grant County. The trial court in Grant County entered

a temporary parenting plan that designated Tomi as the primary residential parent. A guardian

ad litem (GAL) from Grant County met with John, Tomi, and the children on several occasions

during 2012 and 2013. The GAL raised questions about the credibility of both John and Tomi in



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No. 49229-6-II


his reports. Following a change of venue to Pierce County, a new GAL evaluated the family

members and made written recommendations to the court.

       After a bench trial, the trial court entered a permanent parenting plan that designated

Tomi as the primary residential parent. In the parenting plan, the court found that John had a

long-term problem with alcohol that “gets in the way of [his] ability to parent.” Clerk’s Papers

(CP) at 72. The court also entered an additional finding that John’s alcohol problem “includes or

influences behavior requiring psychological evaluation and treatment.” CP at 81-82. Based on

these findings, the court placed limitations on John’s conduct that included abstaining from

alcohol, enrolling in a random urinalysis program, and enrolling in counseling therapy with a

psychologist to address his alcohol dependence and other issues. The parenting plan stated that

John’s parenting time would be suspended if he did not comply with the court’s limitations.

       The parenting plan also included the court’s finding that neither parent had a problem

with domestic violence requiring a mandatory limitation on parenting time.

       John appeals the trial court’s parenting plan.

                                           ANALYSIS

A.     PARENTING PLAN PROVISIONS

       A trial court has broad discretion in developing a parenting plan. In re Marriage of

Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). This discretion is guided by (1) RCW

26.09.184, which states the objectives of a parenting plan and identifies the required provisions;

(2) RCW 26.09.187(3)(a), which lists seven factors that the court must consider when adopting

residential provisions; and (3) RCW 26.09.002, which declares that the best interests of the child

is the standard for determining parental responsibilities. See Katare, 175 Wn.2d at 35-36. In



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addition, the trial court’s discretion is guided by RCW 26.09.191, which provides certain factors

that require limitations on a parent’s residential time (subsection (2)) and permit limitations on

parenting plan provisions (subsection (3)). See Katare, 175 Wn.2d at 36.

       RCW 26.09.187(3) states that a child’s residential schedule must be consistent with RCW

26.09.191 and that the seven factors listed in RCW 26.09.187(3)(a) must be considered only if

limitations imposed under RCW 26.09.191 are not dispositive of the residential schedule.

       We review a trial court's parenting plan for an abuse of discretion. In re Marriage of

Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). A trial court abuses its discretion where its

decision is manifestly unreasonable or based upon untenable grounds or reasons. Id. The trial

court’s findings of fact are verities on appeal as long as they are supported by substantial

evidence. Id. Substantial evidence is that which is “ ‘sufficient to persuade a fair-minded person

of the truth of the matter asserted.’ ” Id. (quoting Katare, 175 Wn.2d at 35). We do not review

the trial court's credibility determinations or weigh evidence. Black, 188 Wn.2d at 127.

       We are extremely reluctant to disturb child placement decisions “[b]ecause the trial court

hears evidence firsthand and has a unique opportunity to observe the witnesses.” In re Parenting

& Support of C.T., 193 Wn. App. 427, 442, 378 P.3d 183 (2016).

B.     RESTRICTIONS BASED ON ALCOHOL ABUSE

       John argues that the trial court abused its discretion in placing a limitation on his contact

with the children because (1) the court was required to make a detailed finding that his alcohol

problem would cause specific harm to the children to impose a restriction under RCW

26.09.191(3)(c), and the court’s boilerplate finding regarding the restriction was insufficient to




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satisfy this requirement; (2) even if the court’s finding was sufficient, substantial evidence did

not support that finding. We disagree with both arguments.

       1.   Statutory Provisions

       Under RCW 26.09.191(3), the trial court “may preclude or limit any provisions of the

parenting plan” if at least one of seven listed factors exist. The existence of one of the factors

permits but does not require the trial court to impose limitations. See Katare, 175 Wn.2d at 36.

The rationale for imposing limitations on a parenting plan is that “[a] parent’s involvement or

conduct may have an adverse effect on the child’s best interests.” RCW 26.09.191(3).

       The third factor that permits a trial court to impose limitations is “[a] long-term

impairment resulting from drug, alcohol, or other substance abuse that interferes with the

performance of parenting functions.” RCW 26.09.191(3)(c). A seventh factor is a catchall

provision for “[s]uch other factors or conduct as the court expressly finds adverse to the best

interests of the child.” RCW 26.09.191(3)(g).

       2.    Requirement of Finding of Specific Harm

       To support imposing limitations on John’s contact with the children, the trial court made

a factual finding that tracked the language of RCW 26.09.191(3)(c): “John Ingersoll has a long-

term problem with drugs, alcohol, or other substances that gets in the way of his/her ability to

parent.” CP at 72. John argues that this finding was insufficient because a trial court is required

to make a detailed finding of specific harm to the child before imposing restrictions under any of

the subsections of RCW 26.09.191(3). We disagree.

       We must determine whether RCW 26.09.191(3) requires a trial court to make certain

findings to support limitations on parenting plan provisions. Statutory requirements are a



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No. 49229-6-II


question of statutory interpretation, which we review de novo. Pope Res. v. Dep’t Nat. Res., 197

Wn. App. 409, 416-17, 389 P.3d 699 (2016), review granted, 188 Wn.2d 1002 (2017).

       Nothing in RCW 26.09.191 expressly requires a trial court to make any specific level of

findings before limiting parenting plan provisions under RCW 26.09.191(3). See RCW

26.09.191(6) (stating only that “[i]n determining whether any of the conduct described in this

section has occurred, the court shall apply the civil rules of evidence, proof, and procedure”).

       John relies on the Supreme Court’s decision in In re Marriage of Chandola, 180 Wn.2d

632, 327 P.3d 644 (2014). In that case, the court addressed a trial court’s imposition of

limitations on a parent’s contact with his child under the catchall provision, RCW

26.09.191(3)(g). Id. at 636. The issue was what type of adverse effect on the child’s best

interests a trial court must find before imposing parenting plan limitations under the catchall

provision, subsection (3)(g). Id. (quoting RCW 26.09.191(3)(g)). The court’s holding was that

limitations imposed under RCW 26.09.191(3)(g) “must be reasonably calculated to prevent

relatively severe physical, mental, or emotional harm to a child.” Chandola, 180 Wn.2d at 636.

       In the course of its analysis, the court in Chandola stated, “RCW 26.09.191(3)(g) does

require a particularized finding of a specific level of harm before restrictions may be imposed.”

Id. at 646 (emphasis added). John claims that this rule also applies to the other subsections of

RCW 26.09.191(3).

       But the court’s explanation of the rule does not support John’s claim. The court pointed

out that the other subsections of RCW 26.09.191(3) “concern either the lack of any meaningful

parent-child relationship whatsoever or conduct . . . that seriously endangers the child’s physical

or emotional well-being.” Chandola, 180 Wn.2d at 647. In other words, the legislature already



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had determined that the conduct described in subsections (3)(a)-(f) involved harm to the child.

The court concluded that “the nature of the specific grounds for parenting plan restrictions listed

[in] RCW 26.09.191(3)(a)-(f)” show that the legislature intended subsection (3)(g) to apply only

when necessary to protect the child from harm “similar in severity to the harms posed by the

‘factors’ specifically listed in RCW 26.09.191(3)(a)-(f).” Chandola, 180 Wn.2d at 648.2

       The court’s implication in Chandola was that application of subsection (3)(g) requires a

finding of specific harm to the child because application of the other subsections necessarily, by

their terms, involves a finding of harm to the child. See id. at 646-48. For example, under

subsection (3)(c) a parent’s long-term alcohol abuse that interferes with parenting functions

necessarily “seriously endangers the child’s . . . emotional well-being.” Id. at 647.

       We conclude that Chandola requires detailed findings of specific harm to the child only

for application of RCW 26.09.191(3)(g), not for application of any of the other subsections of

RCW 26.09.191(3).

       John also cites this court’s decision in In re Marriage of Underwood, 181 Wn. App. 608,

326 P.3d 793 (2014), for the proposition that a trial court must enter detailed findings when

applying RCW 26.09.191(3)(c). But the court in that case required detailed findings in a very

narrow situation: “allowing a child to decide whether to have any residential time with the non-

custodial parent based solely on the RCW 26.09.191(3) factors.” Underwood, 181 Wn. App. at




2
  In its conclusion regarding the necessity of harm, the court referred generally to RCW
26.09.191(3) rather than specially to RCW 26.09.191(3)(g). This appears to be an inadvertent
omission. Considered in context – following directly after a reference to RCW 26.09.191(3)(a)-
(f) – the court’s holding clearly referred only to subsection (3)(g).



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612-13 (emphasis added). Underwood did not impose a detailed finding requirement for any

application of RCW 26.09.191(3).

       Finally, John cites Thompson v. Thompson, 56 Wn.2d 683, 355 P.2d 1 (1960), to support

his position. In that case, the court affirmed an award of custody of a child to the father despite

the mother’s assertion that he was a “drunkard.” Id. at 685. The court discounted this assertion

because there was no evidence that his drinking habit rendered the father incompetent in any

way. Id. But Thompson said nothing about the detail of the trial court’s findings, and supports

only a rule that there must be some connection between a parent’s alcohol problems and

parenting abilities. Here, the trial court expressly found that John’s alcohol problem “gets in the

way of [his] ability to parent.” CP at 72.

       We hold that the trial court’s general finding that tracked the language of RCW

26.09.191(3)(c) was sufficient for the court to impose limitations on John’s contact with his

children under that subsection.

       3.   Substantial Evidence Supporting Restriction

       John argues that substantial evidence did not support the trial court’s finding that John

had a long-term problem with alcohol that got in the way of his ability to parent. We disagree.

       John testified that he drank to deal with the problems in his marriage. John further

testified that his use of alcohol had been unhealthy. Tomi testified that during their time together

John would drink a lot of alcohol at home. She stated that he would drink an entire bottle of

liquor in a single day. We hold that this evidence was sufficient to support the trial court’s

finding that John had an alcohol problem.




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       Regarding the effect of John’s alcohol use on his parenting, Tomi testified that John’s use

of alcohol played a role in the arguments between them. He would become angrier and more

violent, and then he would have a short temper with the children. Tomi stated that when he

would drink he would yell at and spank the children.

       The Pierce County GAL testified that alcohol exacerbated John’s problematic personality

traits that made him prone to impulsive, self-indulgent, and short-sighted behavior. And the

GAL stated that both children were apprehensive about John’s anger. One child told the Grant

County GAL that her primary concern was with John’s anger and behavior during Skype visits.

The other child told a therapist that he was afraid when John drank alcohol.

       John relies on testimony from the Pierce County GAL and a person who supervised his

visits with his children that did not identify any risk of harm to the children from John’s alcohol

use. But under RCW 26.09.191(3)(c), the standard is whether the alcohol problem “interferes

with the performance of parenting functions.” As we conclude above, the trial court was not

required to make a specific finding that the problem caused harm to the children.

       The trial court’s finding involves witness credibility, and we do not interfere with the trial

court’s credibility determinations. Black, 188 Wn.2d at 127. In addition, the trial court is in the

best position to evaluate the evidence. C.T., 193 Wn. App. at 442. We hold that this evidence

was sufficient to support the trial court’s finding regarding John’s alcohol problem.

       The evidence is sufficient for a fair-minded person to conclude both that John had an

alcohol problem and that his problem got in the way of his ability to parent. Therefore, we hold

that substantial evidence supported the trial court’s RCW 26.09.191(3)(c) finding.




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C.     DESIGNATION OF PRIMARY RESIDENTIAL PARENT

       John challenges the designation of Tomi as the primary residential parent in the parenting

plan. He argues that the trial court erred in failing to enter limitations against Tomi for a history

of acts of domestic violence under RCW 26.09.191(2)(a)(iii) and improperly relied on Tomi’s

status as the primary residential parent under the temporary parenting plan. We disagree.

       1.   Finding of No Domestic Violence

       The trial court made a specific finding in the parenting plan that neither parent had any

problems, including domestic violence, that required a limitation on parenting time. John argues

that substantial evidence does not support the trial court’s finding that Tomi’s behavior did not

constitute a history of domestic violence. Therefore, he argues the trial court was required to

limit Tomi’s residential time. We disagree.

       Under RCW 26.09.191(2)(a), “[t]he parent’s residential time with the child shall be

limited” if the trial court finds that the parent has engaged in certain specified conduct. If the

trial court finds that a parent has engaged in such conduct, the limitation of that parent’s

residential time is mandatory. Underwood, 181 Wn. App. at 611-12.

       One type of conduct that requires a limitation on residential time is engaging in “a history

of acts of domestic violence as defined in RCW 26.50.010([3])3 or an assault or sexual assault

which causes grievous bodily harm or the fear of such harm.” RCW 26.09.191(2)(a)(iii). RCW

26.50.010(3)(a) defines “domestic violence” to include “[p]hysical harm, bodily injury, assault,




3
 This RCW includes an asterisk that leads to the following note: “Reviser’s note: RCW
26.50.010 was alphabetized pursuant to RCW 1.08.015(2(k), changing subsection (1) to
subsection (3).


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or the infliction of fear of imminent physical harm, bodily injury or assault, between family or

household members.”

        John argues that there was undisputed evidence that Tomi engaged in conduct meeting

the statutory definition of domestic violence and constituting an assault that caused a fear of

grievous bodily harm. He relies on Tomi’s testimony that she admitted grabbing a kitchen knife

and threatening to kill John, and kicking open a door and beating John’s chest. He also relies on

an incident in which witnesses stated that Tomi choked John at a family gathering, although

Tomi denied that she choked him. John claims that Tomi’s admission of at least the first two

incidents requires a finding of domestic violence as a matter of law.

        However, Tomi actually provided more detail regarding these incidents than John

summarizes in his brief. The knife incident occurred when Tomi told John that she and their 15-

month-old daughter were going to California to visit her sister and John grabbed the child and

refused to let her go. Although the child was crying, John was taunting Tomi and telling her that

she could not have the child. Tomi admitted grabbing a knife and threatening to kill herself and

then threatening to kill John, but she said that John just laughed at her. Given John’s response,

this evidence supports a finding that this incident did not involve “fear of imminent physical

harm, bodily injury or assault” under RCW 26.50.010(3)(a).

        Tomi testified that the incident when she hit John’s chest started when she kicked open

the bathroom door while John was taking a shower. John was mad, and grabbed her arms and

pushed her from the bathroom to the bedroom. In response, Tomi hit John repeatedly in the

chest. This evidence supports a finding that Tomi was defending herself rather than assaulting

John.



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       Tomi denied that she choked John at the family gathering. She testified that John was

grabbing her younger brother and messing with him, and she tried to gently push John away.

Tomi’s arm moved up from John’s chest and John claimed that he was choking her, but Tomi

denied wrapping her hands around John’s neck. Tomi’s testimony supports a finding that she did

not choke John.

       The Grant County GAL did not offer any opinion on domestic violence allegations

regarding either party. The Pierce County GAL found it difficult to reach a conclusion or make

recommendations regarding the parties’ reciprocal allegations of domestic violence, but testified

that any such allegations did not impact his opinion on the parenting abilities of either party.

       The totality of the evidence is sufficient to persuade a fair-minded person that Tomi did

not have a history of acts of domestic violence. Therefore, we hold that substantial evidence

supported the trial court’s finding that Tomi did not have a problem with domestic violence that

required limitations on her parenting time.

       2.    Reliance on Temporary Parenting Plan

       John also argues that the trial court improperly based its designation of Tomi as the

primary residential parent on her status as the primary residential parent in the temporary

parenting plan, in violation of RCW 26.09.191(5). We disagree.

       As discussed above, the trial court has broad discretion in developing a permanent

parenting plan. Katare, 175 Wn.2d at 35-36. However, RCW 26.09.191(5) expressly states that

a trial court may not draw presumptions from the temporary parenting plan. Under this statute, a

trial court cannot establish a permanent parenting plan solely on the basis of the temporary

parenting plan or presume that maintaining the same primary residential parent is in the child’s



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best interest. In re Marriage of Kovacs, 121 Wn.2d 795, 808-09, 854 P.2d 629 (1993). Further,

the trial court cannot apply a presumption based on the temporary parenting plan to determine

the primary residential parent when the analysis of the factors in RCW 26.09.187(3)(a) results in

a “tie.” In re Marriage of Combs, 105 Wn. App. 168, 176-77, 19 P.3d 469 (2001).

        Here, the trial court’s designation of Tomi as the primary residential parent was

consistent with the RCW 26.09.191(3)(c) limitation placed on John, and there is no indication in

the record that the court applied a presumption based on the temporary parenting plan.

Accordingly, we hold that the trial court did not improperly base its designation of Tomi as the

primary residential parent on her status in the temporary parenting plan.

                                          CONCLUSION

        We affirm the trial court’s parenting plan.

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

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

2.06.040, it is so ordered.



                                                      MAXA, J.

 We concur:



 WORSWICK, J.




 BJORGEN, C.J.




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