FILED
COURT OF APPEALS
DIVISION II
2005 JAR 27 AN 8: 50
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
IN RE MARRIAGE OF No. 45273 -1 - II
JESSICA EMILY MATTSON (formerly
known as STALKER),
Respondent,
v.
NICHOLAS DAVID STALKER; UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Nicholas David Stalker appeals the trial court' s order granting a minor
modification of the parties' parenting plan. He argues that the trial court abused its discretion in
finding a substantial change in circumstances and in finding that Jessica Emily Mattson' s work
schedule change from part time to full time was involuntary, making the parenting plan impractical
to follow. Holding that the trial court did not abuse its discretion because Mattson presented
sufficient evidence of a substantial change in circumstances, we affirm.'
1 Stalker does not assign error to the finding of fact that the modification did not exceed 24 full
days in a calendar year. We consider unchallenged findings as verities on appeal. In re Marriage
of Fiorito, 112 Wn. App. 657, 665, 50 P. 3d 298 ( 2002).
No. 45273 -1 - II
FACTS
Stalker and Mattson are the parents of two children: N.S. and R.S. 2 On July 28, 2009, the
trial court entered an agreed final parenting plan for the two children as part of the parent' s
dissolution action. At the time, Mattson worked part time ( 2. 5 days a week) for the Puyallup
School District ( the District) as a high school American Sign Language ( ASL) teacher. The
parenting plan stated that the children would reside with Stalker from Friday 7: 00 PM to Sunday
7: 00 PM the first, second, and third weekends of the month and every Tuesday from 4: 30 PM to
Wednesday 9: 00 AM. The children were to reside with Mattson at all other times.
For the school year 2011 -12, Mattson' s work hours increased to 80 percent of full time.
Starting in the school year 2012 -2013, Mattson' s work hours were scheduled to increase to full
time. On August 20, 2012, when N. S. and R.S. were then ages nine and seven, Mattson petitioned
the trial court to modify the 2009 parenting plan. In her petition, she asserted that the schedule
her quality time her She had
working because it did
was not not allow sufficient with children.
remarried and had another child, then aged one year old. She requested that the trial court modify
the schedule to give Stalker visitation Thursday from 7: 00 PM through Sunday evening at 7: 00 PM
every other week ( rather than Friday evening through Sunday evening) and keep the current
overnight visitation every week from Tuesday 4: 30 PM to Wednesday 9: 00 AM.3
At trial, Mattson testified that the 2009 parenting plan was not working " very well."
Verbatim Report of Proceedings ( VRP) at 24. She explained that she did not have any quality
2 We use the minor children' s initials to maintain confidentiality and we mean no disrespect.
3 On September 24, 2012, the trial court commissioner found adequate cause to hear Mattson' s
petition.
No. 45273 -1 - II
time with the two children because their time at her home was taken up with homework and
housework before bedtime at 8: 00 PM. Because she only had the children on the fourth weekend
of the month, her weekend would often be overridden by Stalker' s residential time on superseding
holidays and the children' s birthdays that occurred at the end of the month. This meant that
Mattson would not have a weekend with the children for up to seven consecutive weeks, leaving
her without quality family time with them. Mattson also claimed that the children lacked structure
at Stalker' s home and that they would return from his home having not completed their homework.
When Mattson began working as a part-time ASL teacher, she did not intend to become a
full -time employee. For the school year 2012 -2013, according to the District' s contract with her,
she became a full -time employee and also began to advise a student ASL club for a stipend. She
worked five days a week from 7: 10 AM to 4: 00 PM and sometimes late into the evening. Mattson
testified that if she had refused to work more hours, the District would have been required to try
to transfer her. Because only three other schools in the district offered ASL, the District would
have had job for her thus she would have ended unemployed. She
likely not a available and up
considered the change in her work schedule to be involuntary.
Stalker testified that he assumed Mattson' s initial decision to work part time was a " foot in
the door" to " work her way up" to a full -time position. VRP at 62. His testimony focused on his
time spent with the children, which included playing video games, going to the park, watching
movies, eating candy, and bonding. At his house, the children rarely had homework to do. He did
not have the same quality time with the children on Thursday evenings as he did on weekends
when the children were with him.
The trial court found three substantial changes in circumstances:
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No. 45273 -1 - II
1) [ Mattson] moved from part time to full time employment.
2) [ Mattson] remarried.
3) [ Mattson] has another child /sibling of the children.
Clerk' s Papers ( CP) at 39. The trial court also found that Mattson' s change in work schedule was
involuntary, making the parenting plan impractical to follow, and that Mattson' s proposed change
did not exceed 24 full days in a calendar year. Because of Mattson' s full -time work schedule,
combined with her remarriage and new child, the 2009 parenting plan made it "impractical for her
to have any quality time with [ the children] during the week." VRP at 98. The trial court
commented that it could not find case law on whether a new sibling constitutes a substantial
change, but stated that there was " no question" that " common sense indicates that having a new
sibling is a substantial change." VRP at 98. Based on these findings, the trial court entered an
order granting Mattson' s proposed modification under both RCW 26.09. 260( 5)( a) and ( b) and
entered a final modified parenting plan on August 9, 2013. 4 Stalker appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review a trial court' s order granting a minor modification of a parenting plan for abuse
of discretion. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012), cent. denied, 133
4
We note that the August 9, 2013 parenting plan contains two errors: First, the parenting plan
grants Stalker residential custody from Friday 7: 00 PM to Sunday 7: 00 PM every other week.
According to Mattson' s proposed plan and her brief, the 2013 plan should grant Stalker Thursday
7: 00 Sunday 7: 00 PM every other week. The record does not suggest that Mattson ever
PM to
revised her July 2013 proposal to exclude the Thursday overnight. Stalker indicates that this is a
scrivener' s error. Second, the August 9, 2013 order references a " July 24, 2013" order, but the
referenced order was actually entered on July 23, 2013. CP at 41.
4
No. 45273 -1 - II
S. Ct. 889 ( 2013). An abuse of discretion occurs when the trial court' s ruling is manifestly
unreasonable or based on untenable grounds or untenable reasons. Katare, 175 Wn.2d at 35.
II. MINOR MODIFICATION OF PARENTING PLAN
The trial court' s range of discretion in granting a minor modification of a parenting plan is
bounded by the criteria in RCW 26. 09. 260( 5). See In re Marriage of Chandola, 180 Wn.2d 632,
642, 327 P. 3d 644 ( 2014). RCW 26. 09. 260( 5) provides that a court may modify a parenting plan
if the petitioner shows: ( 1) "[ A] substantial change in circumstances of either parent or of the
child," and ( 2) the change either (a) does not exceed 24 full days in a calendar year, or (b) is based
on a parent' s involuntary work schedule change that makes the parenting plan " impractical to
follow."
Stalker argues that the trial court abused its discretion when it granted Mattson' s minor
modification of the 2009 parenting plan because Mattson did not provide evidence that the changes
in her life were " substantial" or evidence that her work schedule change made the 2009 parenting
5
plan impractical to follow. Br. of Appellant at 18. Mattson argues that the record supports the
trial court' s finding of substantial changes in circumstances and that the modified schedule did not
change the number of overnights for either parent. 6 We agree with Mattson.
5 Stalker argues that Mattson did not testify about the effect of her remarriage, birth of a new child,
and work schedule change has on the children. Stalker' s argument overlooks RCW 26. 09. 260( 5);
that statute requires the petitioner to show a substantial change of circumstance in.the life of either
the petitioning parent or the children.
6 Mattson' s argument, that the trial court did not abuse its discretion in modifying the parenting
plan because the change did not impact the number of overnights for each parent, does not find
support in RCW 26. 09. 260( 5), which refers to " full calendar days" and not overnights.
5
No. 45273 -1 - II
A " substantial change in circumstances" is a fact that is unknown to the trial court at the
time it entered the original parenting plan or an unanticipated fact that arises after entry of the
original plan. In re Marriage of Tomsovic, 118 Wn. App. 96, 105, 74 P. 3d 692 ( 2003) ( holding
that father' s relocation was anticipated because the parenting plan detailed three different plans
that differed depending on the parents' residential proximity); In re Marriage ofHoseth, 115 Wn.
App. 563, 572 -73, 63 P. 3d 164 ( 2003) ( holding that the father' s relocation from Idaho to
Washington and his new domestic partner were unanticipated changes because the parenting plan
did not address these issues). A substantial change must be a " bona fide change in circumstances."
In re Marriage of Pape, 139 Wn.2d 694, 716, 989 P. 2d 1120 ( 1999). The burden is on the
petitioner at trial to demonstrate a substantial change in circumstances. Pape, 139 Wn.2d at 716.
I] t is in the trial court' s broad discretion to determine whether [ a] change should be characterized
as substantial." Tomsovic, 118 Wn. App. at 106 ( citing Hoseth, 115 Wn. App. at 572).
We will not second -guess a trial court' s reasonable rationale for determining that a
petitioner has demonstrated a substantial change in circumstances. Here, the trial court reasoned
that Mattson had presented evidence of a substantial change in circumstances when the totality of
a change in work schedule from part time to full time, remarriage, and birth of a new child were
considered in relation to each other. The trial court heard testimony about the impact these changes
had on Mattson.
According to the trial court, " common sense" indicated that a new child was a substantial
change because Mattson' s time with N. S. and R. S. was further divided by a new child. VRP at
7 We also note that siblings need to spend quality time together as a family and under the 2009
plan they could not do so because Mattson was awarded so few weekends with N.S. and R.S.
6
No. 45273 -1 - I1
98. A change of employment may be a substantial change in circumstances. Pape, 139 Wn.2d at
716 ( listing a change in employment as an example of a " bona fide change in circumstances ").
Remarriage may also be a substantial change in circumstances. Hoseth, 115 Wn. App. at 572.
Under Mattson' s proposed modified parenting plan, each parent would have residential time every
other weekend. Stalker would additionally have visitation on Thursday evenings. Given these
reasons, the trial court' s decision to modify the parenting plan was not unreasonable or based on
untenable grounds. Katare, 175 Wn.2d at 35. The trial court did not abuse its discretion in finding
a substantial change in circumstances under these facts.
ATTORNEY FEES
Mattson requests attorney fees under RAP 18. 9, arguing that this appeal is frivolous.
Alternatively, Mattson requests attorney fees under RCW 26. 09. 140.
RAP 18. 9 allows an appellate court to sanction a party who files a frivolous appeal. Lutz
Title, Inc. v.. Krerch, 136 Wn. App. 899, 906, 151 P. 3d 219 ( 2007). An appeal is frivolous if, based
on the entire record, the appellant presents "` no debatable issues upon which reasonable minds
might differ, and [ that the appeal] is so totally devoid of merit that there is no possibility of
reversal. "' Tiffany Family Trust Corp. v. City ofKent, 155 Wn.2d 225, 241, 119 P. 3d 325 ( 2005)
quoting Green River Cmty. Coll., Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 442-
43, 730 P. 2d 653 ( 1986)). An appeal is not frivolous simply because the appellant' s arguments
are rejected and all doubts should be resolved in favor of the appellant. Tiffany, 155 Wn.2d at 241.
Stalker presented debatable issues and his appeal is not frivolous.
RCW 26. 09. 140 allows the appellate court, in its discretion and based upon the " financial
resources" of the parties, to order a party to pay the attorney fees of the other party in cases
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No. 45273 -1 - II
governed by chapter 26. 09 RCW. Mattson' s financial declaration showed that she shared
household expenses with another working adult. She also did not include Stalker' s monthly child
support payment to her. Her financial declaration failed to prove financial need. Therefore, we
deny her request for attorney fees under RCW 26. 09. 140.
We affirm. The trial court did not abuse its discretion in finding a substantial change in
circumstances.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
swick, P.
Lee, J.
8