FILED
SEPT. 26,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: ) No. 30866-9-111
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TOBIAS LYNN, )
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Appellant, )
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v. ) UNPUBLISHED OPINION
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AMANDA LYNN, )
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Respondent. )
BROWN, J. - Tobias M. Lynn appeals the trial court's primary custodian
designation of Amanda S. Lynn for their two children. Mr. Lynn contends the trial court
misapplied RCW 26.09.187(3) and erred in concluding Ms. Lynn has been more stable
and that if the children are in her care it will better continue the children's relationship
with their stepbrother and better insure continuity. Ms. Lynn filed a notice of cross
appeal, but does not assign error in her briefing; thus, Ms. Lynn's cross appeal is
deemed waived. We conclude the trial court did not abuse its discretion in its rulings or
misapply the law. Accordingly, we affirm.
No. 30866-9-111
In re Marriage of Lynn
FACTS
The following findings derive from the trial court's findings of fact, which are
unchallenged and, therefore, verities on appeal. In re Marriage of Brewer, 137 Wn.2d
756,766,976 P.2d 102 (1999).
The parties were married in July 2004 and separated in October 2009. They
have two children, six-year-old T.L. and five-year-old L.L. Ms. Lynn also has an eleven
year-old son from a prior marriage.
While drinking and under stress, Mr. Lynn had a pattern of violent outbursts. In
February 2008, Mr. Lynn was arrested for fourth degree domestic violence. The parties
attended counseling together for six months and the State then dismissed the assault
charge. Mr. Lynn petitioned for dissolution on October 19, 2009.
On December 13, 2009, Mr. Lynn spanked T.L. for throwing a toy that hit him in I
the groin area. Soon after, Ms. Lynn requested a restraining order based on the 2008
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incident and the recent spanking incident. The court entered a temporary order, partly
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restraining Mr. Lynn from using corporal punishment on the children.
T.L. and L.L. were in their mother's custody for 13 months following separation
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(until November 2010). The court ordered Mr. Lynn to have supervised visitation Friday
through Sunday. Mr. Lynn's mother was the designated supervisor. The supervised
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visitation ended in May 2010. In November 2011, the children were placed with their
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father Monday through Friday and with their mother on weekends while Ms. Lynn
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In re Marriage of Lynn
attended school. In November 2011, the parties changed so that the children were with
Ms. Lynn Thursday to Monday.
Prior to entering a final parenting plan, the court reviewed a report from the
Guardian Ad Litem (GAL). The GAL observed the children with both parents and noted
how impressed she was with how the children interact with their father. The GAL
opined that, overall, the information she gleaned from her investigation did not support a
picture of the father as a domestic violence perpetrator or child abuser. With regard to
Ms. Lynn's relationship with the children, the GAL noted that there was less of an
attachment between the mother and the children. The GAL recommended that primary
residential placement of the children be with Mr. Lynn.
A four day trial was held in February 2012. In its oral ruling, the trial court found
the GAL report to be a "professional document." Report of Proceedings (RP) at 582.
The court observed the report exhibited "objective professionalism." RP at 582-83. The
court found the spanking incident did not constitute abuse.
On April 11, 2012, the trial court issued its written findings of fact and conclusions
of law. The court expressly incorporated its oral ruling into these findings. The court
concluded, "Both parents have loved and nurtured their children, and will continue to do
so. But the mother has been more stable." Clerk's Papers (CP) at 892. The court
further concluded, U[I]f the children are in her primary custody, it will continue the sibling l
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relationship between the children and their step-brother." Id. The trial court ultimately I
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No. 30866-9-111
In re Marriage of Lynn
ruled that residential placement be with Ms. Lynn. Mr. Lynn unsuccessfully requested
reconsideration. This appeal followed.
ANALYSIS
A. Residential Placement
The issue is whether the trial court erred in awarding primary residential
placement of T.L. and L.L. to Ms. Lynn. Mr. Lynn contends the trial court did not
properly analyze the statutory factors used for residential placement and further did not
properly consider the GAL's report.
A trial court has broad discretion in making residential placement decisions. In re
Marriage ofPossinger, 105 Wn. App. 326, 335,19 P.3d 1109 (2001). This broad
discretion is due to the trial court's unique opportunity to observe the parties, determine
their credibility, and sort out conflicting evidence. In re Marriage of Woffinden, 33 Wn.
App. 326, 330, 654 P.2d 1219 (1982). The appellate court is "'extremely reluctant to
disturb child placement dispositions.'" In re Parentage of Schroeder, 106 Wn. App. 343,
349,22 P.3d 1280 (2001) (quoting In re Marriage of Schneider, 82 Wn. App. 471, 476,
918 P.2d 543 (1996). overruled on other grounds by In re Marriage of Littlefield, 133
Wn.2d 39, 940 P.2d 1362 (1997».
A court abuses its discretion if its decision is manifestly unreasonable or based
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on untenable grounds or reasons. In re Marriage of Kovacs, 121 Wn.2d 795, 801,854 f
P.2d 629 (1993). A court's decision is based on untenable reasons "if it is based on an I
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No. 30866-9-111
In re Marriage of Lynn
incorrect standard or the facts do not meet the requirements of the correct standard."
Littlefield, 133 Wn.2d at 47.
The court must consider seven statutory factors when establishing a residential
schedule. These include the strength, nature, and stability of the relationship with each
parent and whether one parent has taken greater responsibility for the child's daily care;
any agreements between the parties; each parent's past performance and future
potential as a parent; the child's emotional needs and developmental level; the child's
involvement in Significant activities; the parents' and child's wishes; and each parent's
employment schedule. RCW 26.09. 187(3)(a)(i)-(vii). The first factor is given the
greatest weight. RCW 26.09.187(3)(a)(vii).
Additionally, a trial court's decision regarding residential placement must be
made with the best interests of the child in mind after considering the factors found in
RCW 26.09.187(3). Mr. Lynn contends the court did not adequately consider RCW
26.09.187(3)(a)(i), (iii), (iv), (v), and (vii) (the strength of the nature of the relationship
between T.L. and L.L. and each parent, the parents' potential for future performance of
parenting functions, T.L. and L.L.'s emotional needs, T.L. and L.L.'s relationship with
siblings and other significant adults, and each parent's employment schedule).
It is evident from the trial court's oral opinion and written findings (verities on
appeal) that the court considered the required statutory factors. The court evaluated the
nature of the relationship of the children with both parents and found that although Mr.
Lynn had been a primary caretaker for a period of time, both parents substantially I
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participated in the raising of T.L. and L.L. The court concluded both parents are
capable of loving and nurturing their children, but Ms. Lynn is "more stable." Clerk's
Papers at 892. This conclusion is supported by evidence that Mr. Lynn has a history of
domestic violence, alcohol abuse, and violent outbursts while Ms. Lynn does not abuse
alcohol and is not prone to angry outbursts. Further, the children are bonded with their
older stepbrother from Ms. Lynn's prior marriage. This supports the court's conclusions
that primary custody with Ms. Lynn would continue the sibling relationship between the
children.
While the GAL recommended placement be with Mr. Lynn, a trial court may
disregard the GAL's recommendations if other evidence does not support them or if the
court finds other testimony more convincing. Fernando v. Nieswandt, 87 Wn. App. 103,
107,940 P.2d 1380 (1997). A court's decision to disregard a GAL report is reviewed for
abuse of discretion. See id. at 108 (applying an abuse of discretion standard when
appellant argued that the trial court erred by accepting the recommendation of the GAL
over the opinions by the appellant's experts). As discussed above, evidence showed
the children were bonded to their mother and stepbrother and were more stable in the
mother's care. This evidence provided tenable grounds to disregard the GAL's
recommendation.
In his unsuccessful request for reconsideration, Mr. Lynn alleged newly
discovered evidence claiming Ms. Lynn changed day cares and relocated. The trial
court, however, found no newly discovered or conflicting evidence shown. Any request
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No. 30866-9-111
In re Marriage of Lynn
by Mr. Lynn for us to consider these facts would require us to engage in improper fact
finding. See Berger Eng'g Co. v. Hopkins, 54 Wn.2d 300, 308, 340 P.2d 777 (1959)
(appellate courts are "not a fact-finding branch of the judicial system.").
Given the evidence, the trial court's decision to place T.L. and L.L. in Ms. Lynn's
primary residential care was not manifestly unreasonable or exercised on untenable
grounds or for untenable reasons. Accordingly, the trial did not err in its placement
decision.
B. Attorney Fees
Ms. Lynn requests attorney fees under RCW 26.09.140 and RAP 18.9. Under
RCW 26.09.140, we may, in our discretion, order a party to pay for the cost to the other
party of maintaining the appeal, including attorney fees, in addition to statutory costs.
This proviSion gives the court discretion to award attorney fees to either party based on
the parties' financial resources, balancing the financial need of the requesting party
against the other party's ability to pay. In re Marriage of Pennamen, 135 Wn. App. 790,
807-08,146 P.3d 466 (2006). Under RAP 18.1(c), the parties have until 10 days prior
to the date this appeal is set on the docket to file their declarations. A recommendation
will be made after these filings are received.
RAP 18.9(a) provides for the imposition of sanctions where a party brings a
frivolous appeal. An appeal is frivolous if we are convinced that it presents no
debatable issues on which reasonable minds could differ and is so lacking in merit that
there is no possibility of reversal. In re Marriage of Foley, 84 Wn. App. 839, 847, 930
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No. 30866-9-111
In re Marriage of Lynn
P.2d 929 (1997). Mr. Lynn did not present issues so lacking in merit that no possibility
of reversal could exist. Thus, we deny Ms. Lynn's request.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
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