Jesse Finken v. Brianne Finken

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 73824-1-1
)
JESSE FINKEN, )
)
Appellant, ) DIVISION ONE
)
and )
)
BRIANNE FINKEN, ) UNPUBLISHED OPINION
)
Respondent. ) FILED: March 13, 2017
)

MANN, J. — Prior to trial in Jesse Finken's petition for dissolution, a court

commissioner issued a temporary order allowing his wife, Brianne Sherman,1 to relocate

to Arizona with their only child. At trial, the court found grounds to restrict Sherman's

residential time with the child, concluded that the child should reside the majority of the

time with Finken, and awarded Finken a judgment for pretrial transportation costs.

Sherman challenges all three rulings. We affirm.

FACTS

Brianne Sherman and Jesse Finken married in 2008 and separated in 2012.

They have a son, C.F., born in April 2011.

1 Brianne Finken currently goes by Brianne Sherman.
No. 73824-1-1/2

In March 2013, Finken filed for dissolution. Shortly thereafter, Sherman filed a

notice of intent to relocate C.F. to Arizona. Following a hearing, a court commissioner

issued a temporary order granting Sherman's request to relocate with C.F. and awarded

Finken 10 days of visitation per month in Washington. The order stated that "[e]ach

party shall handle one half of the transportation of the child for the 10 day visits in

Washington with the child." Sherman did not move to revise this order. See RCW

2.24.050.

In June 2015, the matter proceeded to trial with both parties testifying and calling

witnesses. In its oral decision, the court applied the factors in RCW 26.09.187(3)2 for

determining which parent the child should reside with the majority of the time:

I need to go through the statutory factors [in RCW 26.09.187(3)] that
guide my decision. .. . The first factor and the most important is the

2 RCW 26.09.187(3) provides:
(a)The court shall make residential provisions for each child which encourage
each parent to maintain a loving, stable, and nurturing relationship with the child,
consistent with the child's developmental level and the family's social and economic
circumstances. The child's residential schedule shall be consistent with RCW 26.09.191.
Where the limitations of RCW 26.09.191 are not dispositive of the child's residential
schedule, the court shall consider the following factors:
(i) The relative strength, nature, and stability of the child's relationship with each
parent;
(ii) The agreements of the parties, provided they were entered into knowingly and
voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions
as defined in *RCW 26.09.004(3), including whether a parent has taken greater
responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well
as the child's involvement with his or her physical surroundings, school, or other
significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature
to express reasoned and independent preferences as to his or her residential schedule;
and
(vii) Each parent's employment schedule, and shall make accommodations
consistent with those schedules.

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relative strength, nature, and stability of the child's relationship with each
parent. Certainly I agree with the mother that this child has spent more
time with the mother than with the father. Both parents have met the
child's day-to-day needs when the child's been living with them, but the
[child resided the majority of the time with the mother]3 for the first year or
year and a half of the child's life. Since the parties' separation and
particularly since the relocation to Arizona, the child has been spending
about two-thirds of his time with the mother. That promotes a stronger
relationship with the mother than the father and greater stability for the
child.

That's not to say that each parent isn't fully capable of meeting the
day-to-day needs and the other needs of this child in terms of the
necessities of life and especially the intangibles: Love, affection, support,
and proper parenting.

The second factor has to do with whether there are any
agreements of the parties with respect to a Parenting Plan. Here there are
none.

The third factor is the parents' potential, both past and future, for
performing adequately the parenting functions, and including whether a
parent has taken greater responsibility in meeting the daily needs of the
child.

I think I've spoken to that in large measure. It ties inseparably with
the first issue. The only question I have going forward, given the mother's
disability and her dependence upon her fiancé to help meet her day-to-day
needs financially, is whether in the future there will be the same measure
or level of stability that this child has had with the mother in the past. I'm
not going to speculate that it will change, but I certainly have questions
given the mother's inability to work because of her health.

Certainly the father is physically able to provide for the child, and he
has a good job waiting for him on Monday with a well-established
company in this area.

The fourth factor has to do with the emotional needs and
developmental level of the child. I've heard some evidence from both

3 The trial court's original decision referred to the "primary residential parent."
Ch. 26.09 RCW does not recognize primary residential parents or secondary residential parents. Such
short hand may be convenient, but unfortunately and inappropriately implies that one parent is more
important than another. The Parenting Act of 1987 attempted to defeat such labelling implications by
removing the designation of one parent as custodian and the other as visiting.

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parents about how well the child does when he is with both the mother
and with the father. And I've heard similar testimony to difficulties that the
child has had in adjusting following or in anticipation of spending time with
the other parent, whether it's a return home to the mother or travel to
Washington to spend residential time with the dad. I haven't heard
anything to delineate that this child, at age 4, needs to be with his mother
or needs to be with his father over the other parent.

The fifth factor is the child's relationship with siblings and other
significant adults as well as the child's involvement with his physical
surroundings, school, and other activities. This child is not in school. I
don't question that he's actively involved with playmates in his
environment in Arizona as much as he is involved with family and friends
here in Washington and his surroundings here.

It's clear from the evidence that he has an extended family here in
Washington area. He has aunts, uncles, cousins, grandparents on both
sides of the family. And I'm willing to accept that if he stays in Arizona, he
will have his maternal grandparents staying with him for a significant
amount of time every year.

He obviously has a relationship with the mother's fiancé, Troy. I've
heard nothing to indicate that he has a relationship with Troy's daughter,
although she lives in the area. And I believe Troy's testimony was that he
wanted to have a relationship with his daughter. It didn't sound as though
there was a relationship that involved shared residential time such that this
child has a relationship with Troy's daughter on the same plane as he has
with his half sister, Makayla. That's a relationship that, commendably, the
father has fostered and encouraged every time that he's had time to spend
with Corbin here in Washington.

So the fifth factor clearly indicates to me that there is a far greater
extended family for the child here. I think he would be actively involved in
school regardless of where he's living and actively involved with playmates
and classmates regardless of where he's living. He doesn't have the same
extended blood relationships in Arizona that he has here in Washington.

The sixth factor is the wishes of the parents and the wishes of the
child if the child's old enough to express a view. This child is not. Both
parents obviously would like [the child to reside with them the majority of
the time].4

4 See footnote 3.

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The last factor is each parent's employment schedule and their
ability to make accommodations consistent with those schedules. I think
here each parent is fully capable and has demonstrated the ability to
provide child care when they're working and to work around their work
schedule such that their work schedule isn't going to be a detriment or
interference with their ability to parent the child.[51

The court then noted that the commissioner's temporary relocation ruling was

necessarily subject to change when "the issue is a Parenting Plan." The court stated

"[m]y task is to enter into a Parenting Plan that addresses the considerations that I've

just reviewed and that is fundamentally... in the best interest of the child." The court

proceeded to discuss the effect of moving C.F. from Arizona to Washington and limiting

factors affecting placement under RCW 26.09.191:

I don't believe that it will be in the best interest of the child to remain
in Arizona. The reasons for the relocation had to do with two factors, the
mother's health and the mother's employment. It is still a good area for
her. Her health needs are being addressed, but she's no longer working.
She's not employable. I accept the testimony that she's disabled and
hopefully will be awarded SSI benefits to reflect that disability. Her
employment was one of the fundamental reasons that the mother was
allowed to take the child out of his home state and to relocate to Arizona.

To the extent that the mother indicates that all of this talk of
substance abuse . . . was addressed by and . .. resolved by the court
commissioner belies one significant factor, and that is that after approving
the relocation with the history of alcohol problems in the marriage, the
mother, then, was pulled over for drunk driving six months after she
relocated to Arizona.

Would the result have been any different if the court commissioner
was prescient and could have anticipated that result? I suspect the
decision would have been very different.

The other factor that is of great concern to me is that a Parenting
Plan was entered ... that. . . significantly recognized that the father was
not going to be able to see his child on weekends and a midweek visit and

5(Emphasis added.)

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things of that sort. So the effort was made to assure that the father would
have the child for ten days every month and that the expenses for
transportation would be shared between the parties. Notwithstanding the
entry of that temporary plan, the mother chose not to follow that plan by
dictating to the father that, if he wanted to see his son, that he would now
have to pay all the transportation costs. If she believes that was necessary
due to some change in circumstances, her appropriate remedy was to go
back to court and ask for permission to change or modify the Parenting
Plan.

I will find that there are limiting factors, namely, a longstanding
problem of alcohol abuse by the mother. I think when her own mother
testifies that she has no problem, she just drinks to excess, and when the
grandmother ignores or passes over history of being stopped three times
for drunk driving and multiple police calls to the home because of
intoxication on the part of Troy as well as herself, because she believes
the child is O.K., she just has her head buried in the sand and is glossing
over the significance of the problem and the impact that may have on this
child.

I will find that the mother is physically disabled based on her
testimony and the documentary exhibits.

I will enter a judgment in favor of the father for $2,506.55 for the
unreimbursed transportation expenses that the mother was supposed to
bear under the temporary Parenting Plan.

Given the limiting factors, I will provide that the father will have the
decision-making authority on all nonemergency, major decisions:
Education, healthcare, and religion.

The other consideration that I've weighed... is. .. an attitude. ..
that sadly reflects a willingness to exclude the father. That is not healthy
for this child growing up.

Based on these reasons, the trial court provided that C.F. should live with

Finken a majority of the time.

The court entered a parenting plan expressly incorporating its oral ruling.

Portions of that plan appear to conflict with each other and/or the incorporated oral

ruling with respect to the court's grounds for restricting Sherman's residential time.

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Paragraph 2.2 of the plan lists limiting factors supporting residential restrictions. In that

paragraph, the court checked the box for "[a] long-term emotional or physical

impairment which interferes with the performance of parenting functions as defined in

RCW 26.09.004." Contrary to its incorporated oral ruling, however, the court did not

check the box for "[a] long-term impairment resulting from drug, alcohol, or other

substance abuse that interferes with the performance of parenting functions."

Paragraph 2.2 also conflicts with paragraph 3.10 of the plan, which imposes restrictions

based on the findings in paragraph 2.2. In that paragraph, the court referred only to

Sherman's "long term impairment from her abuse of alcohol" and did not mention any

long term emotional or physical impairment.

The court's child support order awarded Finken "a judgment against Brianne

Finken in the amount of $2506.55 for [pretrial] long distance transportation costs."

Sherman appeals.

ANALYSIS

Trial courts have broad discretion in adopting a parenting plan and we generally

review such plans for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39,

46, 51-52, 940 P.2d 1362(1997); In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d

546(2012). Appellate courts "are reluctant to disturb a child custody disposition

because of the trial court's unique opportunity to personally observe the parties." In re

Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288(1981). "The emotional and

financial interests affected by such decisions are best served by finality. The spouse

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who challenges such decisions bears the heavy burden of showing a manifest abuse of

discretion on the part of the trial court." In re Marriage of Kim, 179 Wn. App. 232, 240,

317 P.3d 555 (2014).

We review findings of fact for substantial evidence. In re Marriage of McDole,

122 Wn.2d 604, 610, 859 P.2d 1239 (1993). We review conclusions of law to determine

whether the findings of fact support the conclusions. In re Marriage of Myers, 123 Wn.

App. 889, 893, 99 P.3d 398(2004).

In addition, our review is also governed by Rules of Appellate Procedure(RAP)

and substantive law that apply equally to litigants proceeding with counsel and those

proceeding pro se. Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405,411,

936 P.2d 1175(1997)("[P]ro se litigants are bound by the same rules of procedure and

substantive law as attorneys."). Failure to comply with these rules may preclude

appellate review. State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999)

(declining to consider arguments where pro se brief did not comply with RAP); In re

Estate of Hook, 193 Wn. App. 862, 873, 374 P.3d 215, review denied, 186 Wn.2d 1014,

380 P.3d 483(2016)(declining to address discretionary review where parties did not

discuss RAP 2.3(b)).

II

Sherman first challenges the finding in paragraph 2.2 of the parenting plan that

her residential time should be limited under RCW 26.09.191(3)(b) due to "[a] long term

emotional or physical impairment which interferes with the performance of parenting

functions as defined in RCW 26.09.004." For the reasons stated below, we conclude

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the challenged finding may be a clerical error, and in any event is not material to the

court's residential decision.

RCW 26.09.191(3) identifies several long-term impairments warranting

residential restrictions, including the following:

(b) A long-term emotional or physical impairment which interferes with the
parent's performance of parenting functions as defined in RCW 26.09.004.

(c) A lono-term impairment resulting from drug, alcohol, or other
substance abuse that interferes with the performance of parenting
functions.

(Emphasis added.) Paragraph 2.2 of the parenting plan contains boilerplate language

mirroring subsections (b) and (c):

The . . . mother's involvement or conduct may have an adverse effect on
the child's best interests because of the existence of the factors which
follow:

[X] A long-term emotional or physical impairment which interferes with the
performance of parenting functions. . .;

[ ] A long-term impairment resulting from drug, alcohol, or other
substance abuse that interferes with the performance of parenting
functions.

The trial court checked the box for "A long-term emotional or physical impairment."

Although the court did not check the box for "[a] long-term impairment resulting from

drug, alcohol, or other substance abuse," it found in both its incorporated oral decision

and paragraph 3.10 of the parenting plan that Sherman had such impairment.6 The

6 Paragraph 3.10, which imposed restrictions based on the limiting factors identified in paragraph
2.2, states in part:

[The mother's residential time with the children shall be limited because there are limiting
factors in paragraphs 2.1 and 2.2. The following restrictions shall apply when the child
spends time with this parent:

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court's failure to check the box for alcohol impairment in paragraph 2.2 was plainly

inadvertent.

Whether the court intended to check the box for a long-term physical impairment

is less clear. Evidence at trial demonstrated that Sherman has a physical disability that

prevents her from working.7 While the court found she had a disability in its oral

decision, it did not clearly identify the disability as a limiting factor warranting residential

restrictions. Nor did the court mention the disability in paragraph 3.10. In these

circumstances, and given the proximity and similar wording of the alcohol impairment

and physical impairment boxes in paragraph 2.2, it is possible that the court intended to

check the alcohol impairment box but inadvertently checked the physical impairment

box instead. It is also possible that the court intended to check both boxes but

neglected to check the alcohol impairment box. In any case, we need not resolve that

ambiguity.

The Court finds that the mother has a long term impairment from her abuse of alcohol,
and it is not in the best interest of the child to remain in Arizona. After relocating to
Arizona, the mother had a DUI within 6 months of the relocation. She also had two
previous DUI charges in Washington State. Additionally, from July 2014 and March
2015, there were four separate police incident reports involving her and/or her fiancé's
(Troy Bailey's) intoxication from alcohol. Therefore, while the child is in her residential
care, she shall not consume any alcohol nor shall she allow the child around anyone
consuming alcohol, including Mr. Bailey.

We note that Sherman does not assign error to the findings in paragraph 3.10 or the court's incorporated
oral finding identifying her alcohol issues as a limiting factor. We also note that Sherman admitted at trial
that her current fiancée is an alcoholic and was intoxicated at the time of the police interventions in 2014
and 2015. In addition, Finken testified to Sherman's history of alcohol abuse, and Marie Axelson, who
lived with Sherman in 2014, testified that Sherman "often" drank to the point of intoxication.

7 Sherman testified that she suffered a "transient ischemic attack" that left her with speech and
memory issues. She also has chronic migraines, chronic myofascial pain, and fibromyalgia.

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Even assuming the court found Sherman's disability was a limiting factor, and

further assuming that there was insufficient evidence to support that finding, we

conclude the finding was not material to the court's decision. State v. Caldera, 66 Wn.

App. 548, 551, 832 P.2d 139(1992)(an erroneous finding of fact which does not

materially affect the trial court's conclusions of law is not prejudicial). As noted above,

paragraph 3.10 made no mention of Sherman's disability and imposed residential

restrictions solely on the basis of Sherman's impairment due to alcohol abuse. While

the court mentioned her disability in passing in its oral ruling, it is clear from that ruling

that Sherman's alcohol problems, C.F.'s greater extended family in Washington, and

Sherman's violations of the prior parenting plan were the principal factors in the court's

decision to have C.F. reside with Finken a majority of the time. Accordingly, any

deficiency in the challenged finding is immaterial and does not warrant relief.

Ill

Sherman next contends the trial court "erred in applying the parenting plan

factors in RCW 26.09.187 when relocation was at issue." She argues that the court

should have applied the statutory relocation factors in RCW 26.09.520(4),8 beginning

8 RCW 26.09.520 lists the following relocation factors;
(1)[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;
(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;

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"with the rebuttable presumption that the relocation was permitted" and requiring Finken

"to prove that the detrimental effect of the relocation outweigh[ed] the benefit of the

change to the child and the relocating person." This argument fails for several reasons.

First, Sherman did not raise this argument at trial. She states in her appellate

brief that she "correctly identified the relocation issue and the statutory factors in her

trial brief."9 But she cites nothing in the record supporting this claim. While she did

attach a list of 10 reasons for relocation to her initial notice of relocation, that list made

no mention of RCW 26.09.520, the application of.a rebuttable presumption, or the

application of the relocation criteria to the residential schedule. In addition, the report of

proceedings does not include closing arguments and contains no mention of the

argument Sherman now raises on appeal. Because Sherman's argument was not

preserved below, and because she offers no basis for reviewing it for the first time on

appeal, we need not consider it. RAP 2.5(a).

Second, Sherman's focus on the relocation factors overlooks the fact that the trial

court's focus was not on the commissioner's relocation decision, but on the residential

schedule under the parenting plan. The court recognized that both parents wished to

have C.F. reside with them a majority of the time and that it needed "to go through the

(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.
9(Emphasis added.)

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statutory factors that guide [that] decision." The court identified its "task" as creating "a

Parenting Plan that addresses the considerations that I've just reviewed." Based on its

review of the statutory factors, the court concluded that C.F. would reside with Finken a

majority of the time. This decision rendered Sherman's relocation petition moot. See,

In re Parentage of R.F.R., 122 Wn. App. 324, 328, 93 P.3d 951 (2004)(The parental

relocation act governs the trial court's decision on whether the parent with whom the

child resides a majority of the time to relocate his or her child); In re Marriage of Fahey,

164 Wn. App. 42, 262 P.3d 128 (2011); RCW 26.09.430 ("a person with whom the child

resides a majority of the time shall notify every other person entitled to residential time

or visitation . . . if the person intends to relocate.").

Third, Sherman's reliance on Kim is misplaced. The mother in that case filed for

dissolution and relocation. Prior to trial, the court temporarily scheduled the children to

reside with the mother a majority of the time. After trial, the court evidently retained the

residential schedule but then granted her petition to relocate after considering the

statutory relocation factors. In affirming, the appellate court ruled that the trial court

properly applied the statutory relocation factors in deciding "the relocation issue." Kim,

179 Wn. App. at 243. Here, by contrast, the trial court reversed the temporary order

determining that C.F. should reside with Sherman a majority of the time, thus rendering

the relocation petition moot.

Fourth, Sherman provides no argument or authority supporting application of the

statutory relocation factors when, as here, a court's residential plan will result in a child's

relocation. RAP 10.3(a)(6)(appellate brief should contain supporting argument,

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citations to legal authority, and references to relevant parts of the record); Am. Legion

Post No. 32v. City of Walla Walla, 116 Wn.2d 1, 7, 802 P.2d 784(1991).

Last, the trial court did consider how changing the residential schedule, and thus

relocating C.F. to Washington, would affect C.F. In fact, the court's oral ruling

effectively covered all of the statutory relocation factors. Thus, even if the court were

required to consider those factors in this setting, the trial court implicitly did so and

remand for express consideration of the factors would be pointless.

Sherman argues in the alternative that even if the court was correct in using only

the residential factors, the court "abused its discretion in applying them." She concedes

that the court considered each of the factors and that it may have based its decision

primarily on the limiting factors discussed above. She argues, however, that the limiting

factor identified in paragraph 2.2 of the parenting plan—i.e., Sherman's physical

impairment—is not supported by the evidence. For the reasons previously stated, that

finding was not material to the court's residential schedule. Moreover, as we noted in

footnote 6, Sherman has not assigned error to the court's finding in paragraph 3.10 and

the incorporated oral decision that she "has a long term impairment from her abuse of

alcohol, and it is not in the best interest of the child to remain in Arizona." The court did

not abuse its discretion in establishing the residential schedule.

IV

Finally, Sherman challenges the court's judgment in favor of Finken for $2506.55

in pretrial long distance transportation costs. This judgment was for "unreimbursed

transportation expenses that the mother was supposed to bear under the temporary

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[pretrial order]." The temporary pretrial order stated that "[e]ach party shall handle one

half of the transportation of the child for the 10 day visits in Washington with the child."

Sherman contends the commissioner's order violated RCW 26.19.080(3), which

states in part that long-distance transportation costs for visitation purposes "shall be

shared by the parents in the same proportion as the basic child support obligation." She

also contends the commissioner "should have divided the [pretrial] long-distance

transportation costs according to the parties' agreement." But Sherman did not raise

these arguments before the commissioner and did not seek revision of the

commissioner's order.1° Absent a motion to revise, the order became a final order of

the superior court subject to review only by this court. RCW 2.24.050; State v. Mollichi,

132 Wn.2d 80, 93, 936 P.2d 408(1997). Because Sherman's arguments on appeal

were not raised before the commissioner, and because she offers no basis to raise

them for the first time on appeal, we decline to consider them. RAP 2.5(a).

Affirmed.

WE CONCUR:

10 In fact, the parenting plan Sherman proposed to the commissioner stated that "Mlle fathwivill:::<
pay for all flights to see the child" and made no mention of RCW 26.19.090(3). (Emphasis added.)

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