Christy M. Mckinley v. Benjamin S. Porter

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Parentage of: )
P.J.M., ) No. 79102-8-I
) (consolidated with 79500-7-I)
Child.
) DIVISION ONE
BENJAMIN S. PORTER, )
Respondent, )
v. ) UNPUBLISHED OPINION

CHRISTY M. MCKINLEY, ) FILED: September 23, 2019
)
Appellant.

SMITH, J. — The child relocation act (CRA), RCW 26.09.405-.560,

establishes a clear presumption that the parent with whom a child resides a

majority of the time will be allowed to relocate with the child.1 To rebut this

presumption, the objecting parent must establish that the detrimental effect of the

relocation outweighs the benefit of the change to the child and the relocating

parent. The court considers a number of mandatory factors to determine the

detrimental effect but must apply the statutory presumption in favor of relocation

to resolve competing claims about relocation. Here, it is undisputed that Christy

McKinley was the parent with whom her son P.J.M. resided a majority of the

1 The CRA was amended in 2019, after the trial court’s decision in this
case, such that the presumption no longer applies when the person proposing
relocation of the child has substantially equal residential time. ~ LAWS OF
2019, ch. 79, § 1, codified as RCW 26.09.525. That amendment does not affect
the outcome in this case.
No. 79102-8-1/2

time, both when she requested relocation and through trial. Nevertheless, the

trial court failed to properly apply the presumption in this case. The record also

establishes that the trial court failed to consider one of the statutory relocation

factors and that it resolved the parents’ competing claims about relocation based

on what it believed would be in P.J.M.’s best interests, without properly

considering the interests and circumstances of the relocating parent, McKinley.

We hold that the trial court abused its discretion by failing to give effect to

the statutory presumption, failing to consider one of the relocation factors, and

using an incorrect standard to resolve the parents’ competing claims about

relocation. We hold further that if the trial court had properly applied the

presumption and considered the presumed benefits of relocation to both P.J.M.

and McKinley, relocation should have been granted. Therefore, we reverse the

trial court’s order restraining relocation and the trial court’s modifications to the

parenting plan and remand to the trial court with instructions to enter an order

allowing P.J.M. to relocate with Mckinley. We affirm the trial court’s other

challenged rulings as further discussed in this opinion. On remand, we direct the

trial court to assign the case to a different judge for the limited purpose of

determining what modifications to the parties’ 2016 parenting plan are necessary

as a result of P.J.M.’s relocation.

BACKGROUND

Christy McKinley and Benjamin Porter had a brief relationship in 2013

after they met on a dating website. Although Porter was married and had three

children at the time, he initially was “not forthcoming” on the dating website about

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No. 79102-8-1/3

his marital status. Porter worked for Microsoft, and McKinley was a law student.

McKinley had a son, B.R., from a previous relationship with Bradley Rasmussen.

McKinley and Porter dated for a few months and near the end of that time, they

conceived P.J.M.

Porter, whose family was part of a conservative religious community, did

not handle the news of the pregnancy well. He was consumed with anxiety

about destroying his family. According to his own testimony, he “just started

spiraling.” As the trial court later wrote,

[f]or a brief time it is safe to say that [Porter] fell apart. [McKinley]
struggled to engage with him during this period; [Porter] actually
sought an anti-harassment order against her because he was afraid
she would share news of the pregnancy with his wife before he had
the opportunity to do so. These circumstances set in motion very
strained communication between the parties that continue to this
day.

Porter dismissed his antiharassment petition after the parties mutually agreed to

an order prohibiting contact. Porter also disclosed his affair to his wife, Erin, and

tried to repair his relationship with her.2 Porter and Erin ultimately separated in

late summer of 2014 and divorced in May 2015. They are raising their three

children according to a 50-50 parenting plan.

Meanwhile, McKinley graduated from law school in December 2013. Her

first job out of law school was a contract position at Microsoft that paid very well

but was not a law-related position.

P.J.M. was born on June 25, 2014, and a friend of McKinley’s notified

2 Because Porter and his former wife share a last name, we refer to Erin
by her first name.
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 No. 79102-8-1/4

Porter of P.J.M.’s birth. Porter again requested an antiharassment order, arguing

among other things that this outreach, together with McKinley’s presence on the

Microsoft campus, were violations of the agreed order prohibiting contact. A King

County District Court judge denied the petition.

In September 2015, when P.J.M. was a year and three months old, Porter

petitioned to establish paternity. Porter first met P.J.M. in October 2015 when

P.J.M. was 16 months old.

The court in the parentage action appointed Dr. Jennifer Wheeler as the

parenting evaluator pursuant to the parties’ agreement. Dr. Wheeler described

P.J.M. as “a cheerful, outgoing, resilient, -~20 month old boy, who appears to be

developing within normal limits in all spheres.” She attributed his resilient

temperament to “the fact that he was born to two loving and highly skilled

parents—both of whom already have significant parenting experience.” She

noted, however, that “[u]nfortunately for [P.J.M.], the majority of his parents’ first

hand experiences with one another occurred under extreme and emotionally-

charged circumstances.” Dr. Wheeler wrote that, as a result, “Ms. McKinley

appears to have developed a strong, persistent negative bias regarding Mr.

Porter” and that “Mr. Porter’s reaction to [McKinley’s pregnancy] appears to have

triggered significant anger and disdain from Ms. McKinley, who has assumed a

persistently adversarial and/or suspicious orientation towards him.” That said,

Dr. Wheeler acknowledged that “[t]his is not to say that Mr. Porter does not have

a negative orientation towards Ms. McKinley; indeed, each of these parents has

engaged in behaviors that-has [sic] resulted in the other assuming a

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No. 79102-8-1/5

defensive/mistrusting orientation towards the other.” In a 33-page report issued

in February 2016, Dr. Wheeler recommended a phased-in 50-50 parenting plan

under which Porter’s time with P.J.M. would increase until P.J.M. turned five

years old, at which time P.J.M. would begin living with Porter and McKinley on an

equal 50-50 basis.

A parentage trial began in July 2016. Meanwhile, in late June of 2016,

McKinley learned that she would be laid off from Microsoft pursuant to a policy

that placed a time limit on contract positions. At the time, McKinley was renting a

large home in Bellevue. “She tried her best to stay there as she struggled to find

a lawyer job in the Seattle/Bellevue area” but was unsuccessful.

The parentage trial concluded at the beginning of August2016. In

November 2016, the trial court entered a parenting plan that tracked Dr.

Wheeler’s recommendations, including the phased-in 50-50 residential schedule

that would begin in June 2019 when P.J.M. turned five. The trial court did not

include any findings in its order.

On May 9, 2017, McKinley gave Porter notice of her intent to relocate to

the Olympia area. She had been offered a position as a hearing examiner at the

Office of the Insurance Commissioner in Olympia, which “was very fortunate, as

at about the same time her landlord [in Bellevue] served her with a three day pay

or vacate notice.” On June 25, 2017, McKinley moved into an apartment in

University Place. A couple of months after relocating to University Place,

McKinley was terminated from her hearing examiner position. But she was soon

thereafter hired as a contract attorney for the Pierce County Department of

5
No. 79102-8-116

Assigned Counsel to represent foster children, a job that “[s]he has come to

enjoy.”

Porter objected to relocation and sought a modification to the parenting

plan. He requested, among other things, that the court “change the person the

child lives with most of the time,” from McKinley to Porter. He also requested to

have Dr. Wheeler reappointed as a parenting evaluator. The trial court

reappointed Dr. Wheeler over McKinley’s objection and ordered that Dr.

Wheeler’s fee be paid 50-50 by the parties.

Dr. Wheeler issued her report on April 19, 2018. In her conclusions and

recommendations, she wrote, “It remains my opinion that [P.J.M.]’s best interest

would be most effectively served by continuing to have frequent, meaningful

access to both of his parents—such as the residential schedule that was

provided by the Final Parenting Plan, that was issued by the court in November

2016.” She recommended that “until/unless mother returns to the Bellevue area,”

the parenting plan be modified such that Porter would be the primary residential

parent and McKinley would have P.J.M. every other weekend and visitation each

Tuesday.

A relocation trial was held in June 2018 before a different judge than the

judge that presided over the parentage trial. In the meantime, McKinley and her

partner, Lars Sommer, whom McKinley had been dating since April 2017,

conceived a child due in September 2018. During trial, they also closed on a

house in University Place that they purchased together.

Dr. Wheeler, McKinley, Porter, Sommer, and Kelsea Laegreid, Porter’s

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No. 791 02-8-1/7

new wife, testified at trial. The court also heard testimony from Dr. Christopher

Tobey, McKinley’s expert, and Hayley Jacobson, Porter’s education expert.

Toward the conclusion of trial, the court made several comments on the record

stating its intent to try to honor the originally contemplated 50-50 parenting plan.

The trial court ultimately denied relocation and entered a modified

parenting plan. In its findings, the trial court stated that “[un this case, the Court

will apply the rebuttable presumption set forth in RCW 26.09.520, but weigh it

somewhat less heavily than the Court would in another case without a 50-50 plan

having been ordered.”

At the time of trial, McKinley was the primary residential parent and would

be until P.J.M. turned five in June 2019. Indeed, under the parenting plan then in

effect, P.J.M., who had met Porter for the first time less than three years earlier,

spent less than 20 percent of his time with Porter.3 Nevertheless, the trial court

ordered that a 50-50 week-on/week-off residential schedule begin immediately—

almost a year earlier than originally contemplated—until P.J.M. started

kindergarten. It also ordered two alternative residential schedules for after P.J.M.

started kindergarten: “Schedule A,” which would go into effect if McKinley did not

permanently relocate back within a 60-minute drive of Porter’s house before the

2019-2020 school year; and “Schedule B,” which would go into effect if McKinley

did move back before the 201 9-2020 school year. Under Schedule A, Porter

would be P.J.M.’s primary residential parent except that he would spend every

~ The 2016 parenting plan provides that from age three to five, P.J.M.
would spend, over each two-week period, a total of 64 hours with Porter.
7
 No. 79102-8-1/8

other weekend with Mckinley, plus a weekly Tuesday night overnight. Schedule

B was the same 50-50 residential schedule that would have begun when P.J.M.

turned five under the 2016 parenting plan. The trial court also designated Porter

as the sole decision-maker for education and nonemergency healthcare-related

decisions about P.J.M. (whereas, under the 2016 parenting plan, the parents had

joint decision-making authority). Mckinley appeals, challenging the trial court’s

denial of relocation and various other related decisions.

ANALYSIS

DENIAL OF RELOCATION

Mckinley argues that the trial court abused its discretion by denying her

request to relocate with P.J.M. We agree.

The CRA sets forth notice requirements and standards for changing the

primary residence of a child who is subject to a court order regarding residential

time. In re Marriage of McNaught, 189 Wn. App. 545, 553, 359 P.3d 811(2015).

“If a person entitled to residential time or visitation objects to a child’s relocation,

the person seeking to move the child may not relocate the child without court

approval.” McNaught, 189 Wn. App. at 553. “Upon a proper objection, a trial

court must conduct a fact-finding hearing on the proposed move.” McNaught,

189 Wn. App. at 553. To that end, RCW 26.09.520 “creates a rebuttable

presumption that relocation will be permitted.” In re Marriage of Homer, 151

Wn.2d 884, 887, 93 P.3d 124 (2004). To rebut this presumption, the objecting

party must demonstrate “that the detrimental effect of the relocation outweighs

the benefit of the change to the child and the relocating person.”

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No. 791 02-8-1/9

RCW 26.09.520.~ The court considers the following factors to determine whether

the objecting party has rebutted the presumption in favor of relocation:

(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
pa rent;
(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
(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 neither weighted nor listed in any particular

order. RCW 26.09.520. Consideration of the factors “is logical because they

serve as a balancing test between many important and competing interests and

~ Because RCW 26.09.520(3) was amended in 2019, we cite to former
RCW 26.09.520(3) (2000) for that subsection. The remainder of RCW 26.09.520
is unchanged; thus, we cite to the current statute for all other references to the
statute, including its preamble and other subsections.

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No. 79102-8-1/10

circumstances involved in relocation matters.” Homer, 151 Wn.2d at 894.

“Particularly important in this regard are the interests and circumstances of the

relocating person.” Homer, 151 Wn.2d at 894. To that end, by establishing a

rebuttable presumption that relocation will be allowed, the CRA “both

incorporates and gives substantial weight to the traditional presumption that a fit

parent will act in the best interests of her child.” In re Custody of Osborne, 119

Wn. App. 133, 144, 79 P.3d 465 (2003).

We review a trial court’s decision to deny relocation for an abuse of

discretion. Homer, 151 Wn.2d at 893. “Abuse of discretion occurs ‘when the trial

court’s decision is manifestly unreasonable or based upon untenable grounds or

reasons.” Homer, 151 Wn.2d at 893 (quoting State v. Brown, 132 Wn.2d 529,

572, 940 P.2d 546 (1997)). “A court’s decision is manifestly unreasonable if it is

outside the range of acceptable choices, given the facts and the applicable legal

standard.” In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).

“[lilt is based on untenable grounds if the factual findings are unsupported by the

record.” Littlefield, 133 Wn.2d at 47. And “it 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.” Littlefield, 133 Wn.2d at 47. Where the trial court has

weighed the evidence, “[wje do ndt review credibility determinations or reweigh

the evidence to determine if we should reach a different conclusion.” McNaught,

189 Wn. App. at 561. Rather, “[w]e will reverse a trial court’s factual findings only

if they are unsupported by substantial evidence,” i.e., “evidence of sufficient

quantity to persuade a fair-minded, rational person of the truth of the declared

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No. 791 02-8-1/11

premise.” In re Marriage of Raskob, 183 Wn. App. 503, 510 & n.7, 334 P.3d 30

(2014) (quoting Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986),

cert. dismissed, 479 US. 1050 (1987)). To that end, we are not bound by the trial

court’s findings if the trial court “rejects uncontroverted credible evidence, or

capriciously disbelieves uncontradicted evidence.” Smith v. Pac. Pools, Inc., 12

Wn. App. 578, 582, 530 P.2d 658 (1975).

Here, reversal is required because the trial court’s decision to deny

relocation was an abuse of discretion. Specifically, the court failed to apply the

statutory presumption in favor of relocation and improperly engaged in a best-

interests-of-the-child analysis instead of weighing the detriment of relocation

against the presumed benefits to P.J.M. and McKinley. Additionally, the trial

court’s errors pervade its findings regarding the individual relocation factors such

that if the trial court had applied the correct legal standards, relocation should

have been permitted. Each of these issues is discussed in turn below.

Application of Incorrect Standards

As discussed, the CRA establishes a presumption that a child will be

permitted to relocate with the parent with whom the child resides a majority of the

time. Former RCW 26.09.430 (2000); RCW 26.09.520. Additionally, the CRA

requires the court to consider the relocation factors with a view toward

determining whether “the decision of a presumptively fit parent to relocate with

the child . . . will in fact be so harmfulto a child as to outweigh the presumed

benefits of relocation to the child and relocating parent.” In re Parentage of

R.F.R., 122 Wn. App. 324, 332-33, 93 P.3d 951 (2004) (emphasis added). Thus,

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No. 791 02-8-1/12

“the standard for relocation decisions is not only the best interests of the child.”

Homer, 151 Wn.2d at 894. Indeed, it is error for a trial court not to consider the

benefit of the change to the child and the relocating parent. Homer, 151 Wn.2d

at 894; RCW 26.09.520.

Here, it is undisputed that at the time of trial, McKinley was the person

with whom P.J.M. resided a majority of the time: Under the parenting plan then in

effect, P.J.M. spent time with Porter only on weekends and one weeknight.

Nevertheless, the court failed to apply the presumption, stating, “In this case, the

Court will apply the rebuttable presumption set forth in RCW 26.09.520, but

weigh it somewhat less heavily than the Court would in another case without a

50-50 plan having been ordered.” (Emphasis added.) The court reasoned that

“[t]here is no case law on how to weigh [the] presumption when a 50-50

parenting plan is ordered to be implemented in the future” and that “[t]he

incentive for gamesmanship in this setting is considerable.” But the plain

language of the CRA requires the court to apply the presumption in favor of

relocation to “a person with whom the child resides a majority of the time.” ~

In re Marriage of Snider, 6 Wn. App. 2d 310, 317, 430 P.3d 726 (2018) (holding

that in a 50-50 residential schedule, neither parent is entitled to the presumption

because neither parent is “a person with whom the child resides a majority of the

time” (quoting former RCW 26.09.430)). By weighing the presumption

“somewhat less heavily” than it would in other cases where the primary

residential parent seeks to relocate, the court applied a legal standard contrary to

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 No. 79102-8-1/13

the one mandated by the CRA. This was reversible error.

Porter argues that it was within the trial court’s discretion to weigh the

presumption less heavily to address “[tjhe incentive to game the system and

relocate just to avoid the 50/50 plan.” But because a trial court does not have

discretion to apply an incorrect legal standard, this argument fails. •~ Kreidler

v. Cascade Nat’l Ins. Co., 179 Wn. App. 851, 866, 321 P.3d 281 (2014) (trial

court necessarily abuses its discretion by applying an incorrect legal standard).

Moreover, one of the relocation factors already directs the court to consider “[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.”

RCW 26.09.520(5). And as discussed, the relocation factors are expressly “not

weighted.” RCW 26.09.520. In other words, the legislature already addressed

the risk of gamesmanship in one of the relocation factors and decided that it

should not be permitted to “trump” any of the other factors. But by weighing the

presumption “somewhat less heavily” to address potential gamesmanship, the

trial court allowed it to do just that. Porter’s argument is not persuasive.

The trial court also abused its discretion by conducting its relocation

analysis with the goal of honoring the originally contemplated, but not yet in

effect, 50-50 parenting plan. Specifically, the trial court’s own statements toward

the conclusion of trial reveal that its subjective intent was to honor the originally

contemplated 50-50 parenting plan. For example, the court stated:

Right, I mean, the way I’m thinking about this. is—is there a way
. .

that / can honor the 50/50 plan? Is there a solution / can come up
with that would allow 50/50 to happen? As it is currently set up, I
can’t imagine that we could do 50/50, but is there something else?

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 No. 79102-8-1/14

So, that’s kind of what I’m pondering.

(Emphasis added.)

The court also stated:

I’m pondering all kinds of creative things and what I’m
struggling with is how few options I have been left. And, that / am
concerned that it’s very difficult to honor the goal of a 50/50
Parenting Plan, given how few options I have. And I’m thinking
about spending some time generating some new options.

(Emphasis added.)

Shortly thereafter, the court stated:

I feel like I ought to have a little bit more authority over the
whereabouts of Ms. Mckinley and re-looking at that where [a] 50/50
plan was so contemplated by the Court than / would in a normal
relocation case. So, that’s kind of the legal basis I’m thinking
about.

(Emphasis added.)

The court also stated:

I think you can tell from my questions that I’m trying to come up
with a way of doing this that might not just be a yes or no to
relocation. And the reason I’m thinking about that is the intention of
moving to a 50/50 plan.
I feel like there’s got to be some way to try to honor that
50/50 plan. If we were talking about, you know, moving across the
country that’s just not—I mean, that’s just a yes or a no. But, here
we have a little bit more wiggle room.

(Emphasis added.)

Additionally, when reciting its oral findings, the court stated, ‘Okay. So I

really want you guys to be able to parent this child 50/50 if we can make it

happen. Okay?” And in its written findings, the trial court wrote that “[t]his Court

believes every effort should be made to make a 50-50 plan work.” To that end,

the trial judge even engaged in her own independent efforts to force a 50-50 plan

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No. 79102-8-1/15

into fruition by reaching out to her contacts at the King County Department of

Public Defense (DPD) about job openings and suggesting that McKinley follow

up with DPD. Finally, after considering the relocation factors, the trial court

concluded that ‘the Court believes it would be in the child’s best interests for the

mother to return to King County and for the parties to share residential time with

him 50-50.” (Emphasis added.) In short, it is beyond dispute that the trial court’s

paramount consideration was to honor the originally contemplated prospective

50-50 plan.

But while the standard by which a trial court establishes a parenting plan

is the best interests of the child, In re Marriage of Possinger, 105 Wn. App. 326,

335, 19 P.3d 1109 (2001), that is not the correct standard for a relocation

analysis. Homer, 151 Wn.2d at 894. By deciding relocation with the goal of

“getting to 50-50,” the court improperly placed its primary focus on P.J.M.’s best

interests.

Analysis of Relocation Factors

As discussed, the trial court erred by failing to apply the presumption and

by conducting its analysis through a best-interest-of-the-child lens rather than by

requiring Porter to prove that McKinley’s decision to relocate with P.J.M. “will in

fact be so harmful to [P.J.M.J as to outweigh the presumed benefits of relocation”

to P.J.M. and McKinley. R.F.R., 122 Wn. App. at 332-33. As further discussed

below on a factor-by-factor basis,5 the trial court’s errors pervade its findings with

~ We do not address factors 2 or 4 because Porter does not provide
argument with regard to those factors, and we do not address factor 11 because
it applies only to temporary orders.
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No. 79102-8-1116

regard to the relocation factors. Specifically, the record reveals that the trial court

at various times ignored evidence, improperly shifted the burden of proof to

McKinley, mischaracterized Sommer’s testimony, improperly considered

McKinley’s reproductive choices, and failed to consider the “[p]articularly

important. . . interests and circumstances of the relocating person.” Homer, 151

Wn.2d at 894. Therefore, reversal is required.

Relocation ‘Factor I

Under the first relocation factor, the trial court was required to consider

“[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.” RCW26.09.520(1).

With regard to this factor, the trial court found that P.J.M. “has strong,

stable relationships with both parents” and “has siblings in both households who

love him.” It then found that this factor “weighs equally for both parents.”

McKinley argues that had the court properly applied the presumption, this factor

would have favored relocation. We agree for two reasons.

First, the trial court’s finding that the first factor weighs equally for both

Porter and McKinley ignores the undisputed evidence that Porter was absent

from P.J.M.’s life from the time he was born until he was 16 months old. It also

ignores the undisputed fact that although Porter’s involvement with P.J.M. would

gradually increase, at the time of trial P.J.M. spent less than 20 percent of his

time with Porter. In other words, substantial evidence does not support a finding

that the first relocation factor, which requires the court to consider the relative

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No. 79102-8-1/17

strength, nature, quality, extent of involvement, and stability of the child’s

relationship with each parent, weighs equally for both parents.

Second, in the relocation context, the burden of production and the burden

of persuasion are on the party opposing relocation—here, Porter. McNauqht,

189 Wn. App. at 556. And again, the first relocation factor requires the court to

consider the relative strength of the child’s relationship with each parent, siblings,

and other significant persons in the child’s life. That the trial court found that

P.J.M. has strong relationships with both parents and siblings in both households

necessarily means that this factor does nothing to rebut the presumption in favor

of relocation. Put another way, the court’s finding that the first relocation factor

weighs “equally” for both parents—despite the fact that P.J.M. has strong

relationships in both households—confirms that the court failed to take into

consideration the presumption that allows McKinley to relocate with P.J.M.

Porter argues that because McKinley did not challenge the trial court’s

findings with regard to the first relocation factor, they are verities on appeal. But

we have the discretion to “review findings to which the appellant fails to properly

assign error as long as the appellant has identified those findings and the nature

of his challenges to them elsewhere in the brief.” Bircumshaw v. State, 194 Wn.

App. 176, 199, 380 P.3d 524 (2016). And here, McKinley fully advises the court

that she takes issue with the court’s findings with regard to the first relocation

factor, and the reasons why. Therefore, we are not persuaded by Porter’s

argument.

Porter next argues that there was sufficient evidence to support the trial

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No. 79102-8-1/18

court’s finding that P.J.M. had a strong and stable relationship with Porter and his

family. But as discussed, in considering this factor, the trial court failed to

consider the relative strength and stability of P.J.M.’s relationships in each

household. The cited evidence regarding P.J.M.’s relationships in Porter’s

household does not persuade us that the trial court properly considered this

factor.

Porter also argues, as a general matter, that the presumption “does not

require initially weighing each individual statutory factor in favor of the relocating

party” and that “[c]onsideration of the factors is distinguished from the

presumption.” He cites McNauqht in support of his arguments, pointing out that

in McNauciht, this court stated that the presumption “provides the standard the

trial court uses at the conclusion of trialto resolve competing claims about

relocation.” McNauqht, 189 Wn. App. at 556 (emphasis added). But Porter’s

argument ignores the CRA’s express language stating that the party objecting to

relocation “may rebut the presumption by demonstrating that the detrimental

effect of the relocation outweighs the benefit of the change to the child and the

relocating person, based upon the [relocation] factors.” RCW 26.09.520

(emphasis added). This means that if a particular relocation factor is neutral (as

the trial court found that the first factor was), it necessarily does nothing to rebut

the presumption and thus favors relocation. Furthermore, the cited statement

from McNau~ht was made in the context of rejecting an argument that the CRA’s

presumption disappears when the party objecting to relocation produces

evidence. McNauciht, 189 Wn. App. at 555-56. McNauqht does not directly

18
No. 79102-8-1/19

address how the presumption should be applied when considering individual

relocation factors and does not support Porter’s argument.

Moreover, even if we were to agree with Porter that the presumption is

applied not while but only after considering the relocation factors, the trial court

here failed to do even that. Specifically, in the “Conclusion” section of its findings

of fact and conclusions of law, the trial court wrote:

The Court finds that it would be more detrimental for the
child’s relationship with his father to be disrupted than for his
relationship with his mother to be disrupted as long as the child has
frequent, meaningful contact with the mother. However, the Court
believes it would be in the child’s best interests for the mother to
return to King County and for the parties to share residential time
with him 50-50.

In other words, the trial court did not, as the CRA requires it to do, resolve the

parties’ competing claims about relocation by applying the presumption in favor

of relocation. Rather, it resolved the parties’ competing claims based on what it

“believe[d]” to be in P.J.M.’s best interests and by reemphasizing its finding

regarding just one of the relocation factors.6 Porter’s argument is unpersuasive.

Porter next argues, relying on expresslo unius est exclusio alter/us,7 that

because two of the relocation factors already encompass a presumption in favor

6 .~ former RCW 26.09.520(3) (requiring the court to consider “[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”).
~ Expressio un/us est exclusio alter/us is a maxim of statutory construction,
stating that when “a statute specifically designates the things or classes of things
upon which it operates, an inference arises in law that all things or classes of
things omitted from it were intentionally omitted by the legislature.” State v.
Swanson, 116 Wn. App. 67, 75, 65 P.3d 343 (2003) (quoting Wash. Natural Gas
Co. v. Pub. Util. Dist. No. 1, 77 Wn.2d 94, 98, 459 P.2d 633 (1969)).
19
No. 79102-8-1/20

of the relocating parent, the legislature intended the other factors—including the

first—not to encompass such a presumption. He points out, for example, that the

third factor directs the court to consider whether disrupting the child’s contact

with the relocating parent would be more detrimental than disrupting the child’s

contact with the nonrelocating parent. But in Homer, our Supreme Court

observed that the consideration of all of the relocation factors “is logical because

they serve as a balancing test between many important and competing interests

and circumstances involved in relocation matters.” Homer, 151 Wn.2d at 894

(emphasis added). The court went on to emphasize: “Particularly important in

this regard are the interests and circumstances of the relocating person.”

Homer, 151 Wn.2d at 894 (emphasis added). The court thus held that

consideration of each relocation factor is required to “ensure that trial courts

consider the interests of the child and the relocating person within the context of

the competing interests and circumstances required by the CRA.” Homer, 151

Wn.2d at 895 (emphasis added). It follows, from the central role that the

relocation factors play in ensuring that the court considers the “[p]articularly

important” interests and circumstances of the relocating person, Homer, 151

Wn.2d at 894, that the factors must be viewed with the presumption in mind.

Therefore, Porter’s argument is not persuasive.

Relocation Factor 3

Under the third relocation factor, the court must consider “[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

20
No. 79102-8-1/21

disrupting contact between the child and the person objecting to the relocation.”

Former RCW 26.09.520(3) (2000). As further discussed below, the trial court’s

analysis of this factor—and the weight that it placed on it—confirms that the trial

court failed to apply the presumption and based its relocation decision on the

best interests of the child.

The court began its analysis of the third relocation factor with the

observation that “[ut is clearly not feasible to implement a 50-50 parenting plan
between Bellevue and University Place once [P.J.M.] starts

school... . Therefore, the Court has to consider whether it would be better for

[P.J.M.] to spend less time with his mother and more time with his father, or vice

versa.” (Emphasis added.) But by basing its analysis on what would happen

when P.J.M. started school, the trial court ignored the fact that at the time of trial,

P.J.M. resided primarily with McKinley, except a weekly Thursday overnight and

an alternating Saturday overnight or Sunday visit with Porter. It also ignored the

fact that McKinley was not proposing to relocate P.J.M. out of or across the state,

where P.J.M.’s contact with Porter would necessarily and immediately be

disrupted by relocation. Rather, under the residential schedule in force at the

time of trial, any disruption to P.J.M.’s contact with his parents would simply

consist of more time being spent in the car traveling between Bellevue and

University Place. And even the trial court itself recognized that “I think the point

that kids do actually talk to you in the car is really important to consider.” In

short, the court’s analysis of the third relocation factor began in the wrong place,

i.e., by making “every effort. . . to make a 50-50 plan work.” As a result, the trial

21
 No. 79102-8-1/22

court ignored the evidence by analyzing the third relocation factor solely through

the lens of an anticipated future 50-50 plan rather than the family’s actual

circumstances.

To that end, and as Porter acknowledges, the trial court relied in part on

Dr. Wheeler’s assessment in analyzing this relocation factor. Dr. Wheeler

testified that her assessment of this factor focused not on the circumstances as

they existed at the time of trial, but on the anticipated future 50-50 plan that she

had previously recommended during the parentage proceeding. Specifically, in

describing her analysis, Dr. Wheeler began by explaining:

So the plan as it was entered in the court, with the court, was for
P.J.[M.J to be moving towards a 50/50 schedule with both of his
parents. And in my opinion that was going to be in his best
interests given that he has two very skilled, very competent, very
loving parents, and a strong relationship with both of them.
So had mother not relocated, that would have been
P.J.[M.]’s future. So no matter what, that 50/50 arrangement is
going to be disrupted because that’s not going to make sense for
him moving forward with parents living as far apart as Tacoma and
Bellevue. So I provided an analysis of my thoughts on—or my
opinions about disrupting contact with mother, as well as an
analysis about my opinion about disrupting contact with father.

In other words, Dr. Wheeler analyzed this factor through the incorrect lens, i.e.,

based on the anticipated 50-50 plan. To the extent that the trial court relied on

Dr. Wheeler’s analysis, it repeated this error.

Furthermore, the trial court’s emphasis on the third relocation factor

confirms that its ultimate decision on relocation focused on “getting to 50-50” and

thus, by extension, on what it believed would be in P.J.M.’s best interests.

Specifically, in its oral ruling, the trial court stated that the third relocation factor

“is really where the rubber meets the road.” And after conducting its analysis of

22
 No. 79102-8-1/23

each factor in its written findings, the trial court expressly discussed the third

factor in its conclusion, stating, “The Court finds that it would be more detrimental

for the child’s relationship with his father to be disrupted than for his relationship

with his mother to be disrupted as long as the child has frequent, meaningful

contact with the mother.” Put another way, the trial court’s emphasis on the third

relocation factor confirms that it failed to apply the presumption in favor of

relocation or give due consideration to the interests of the relocating party,

McKinley.

Porter argues that because McKinley did not challenge the trial court’s

finding that a 50-50 parenting plan is not feasible between Bellevue and

University Place or its finding that “every effort should be made to make a 50-50

plan work,” these findings are verities on appeal. But this argument is

unpersuasive because it fails to acknowledge, as discussed above, that the

anticipated future 50-50 plan was not the proper focus of the trial court’s analysis.

Porter next points out that the trial court made a finding thaL”[i]t would be

a terrible loss for [P.J.M.] not to have the opportunity to grow up at least half the

time with a highly skilled, experienced parent” and argues that sufficient evidence

supports this finding. But this argument is unpersuasive for a number of reasons.

First, it again fails to acknowledge that the trial court improperly focused its

analysis on a future 50-50 plan. Second, it fails to address the fact that the trial

court placed substantial weight on the third relocation factor, thus confirming that

the trial court’s relocation decision was based on what it believed would be in

P.J.M.’s best interests. Third, Porter’s argument ignores that arguably nearly

23
No. 79102-8-1/24

every relocation results in a disruption to the child’s contact with one of the

parents. Therefore, that the relocation will result in a disruption to the child’s

contact with a skilled parent does not alone support a finding that the third

relocation factor weighs against relocation.

Finally, the trial court relied on inadmissible hearsay when making its

finding. Specifically, the trial court referred at length to comments that

Rasmussen made to Dr. Wheeler regarding “the lack of structure in [McKinley’s]

home.” Under ER 703, an expert may base her opinion on facts that are not

otherwise admissible if they are “of a type reasonably relied on by experts in the

particular field.” In re Det. of Leck, 180 Wn. App. 492, 513, 334 P.3d 1109

(2014). But the rule does not permit the fact finder, here the trial court, to

consider those inadmissible facts for the truth of the matter asserted. Porter

argues that the trial court properly admitted Rasmussen’s claims under ER 703

and that the court did not recite the hearsay evidence as a fact or a finding but

only to recognize the information that Dr. Wheeler properly considered in forming

her opinion. But this argument is unconvincing where the trial court’s hearsay-

based description of the conditions in McKinley’s home was immediately followed

by a finding that Porter’s home “is a stark contrast.” To that end, the trial court’s

characterization of Porter’s home as a “stark contrast” also is not supported by

substantial evidence: Dr. Wheeler, the only witness who testified to spending

time in both homes, wrote in her report that ‘[b]oth homes were clean and well

organized, and child friendly” and that “[nb significant environmental concerns

were apparent in either home.” In short, the trial court’s finding with regard to the

24
No. 791 02-8-1/25

relative state of both homes is not supported by substantial evidence.

Porter also points out that ‘there was testimony that called into question

the stability of Ms. McKinley’s relationships and living situation, as well as

testimony that called into question her decision-making abilities.” Specifically,

Porter points to Dr. Wheeler’s testimony that McKinley has “had a number of jobs

just since the last evaluation, a number of residences since the last evaluation.”

But to the extent that the trial court relied on this testimony to conclude that

McKinley is unstable, it ignored its own finding that Dr. Wheeler failed to

appreciate either “the reasons a law student/new lawyer and single mother of two

might move frequently or struggle to find work” or “the nature of contract lawyer

work.” Put another way, the fact that McKinley changed residences and

employment in reaction to past life circumstances does not support a finding of

future instability.

Additionally, the trial court’s concerns regarding Mckinley’s stability and

decision-making abilities were based in part on being “taken aback” by Mr.

Sommer’s testimony that he and Mckinley conceived a baby when they “just

decided to throw caution to the wind.” But the trial court’s characterization of

Sommer’s testimony is not supported by the record: Sommer testified that he

wanted Mckinley to get pregnant if it happened spontaneously, and McKinley

testified that she “thought that it was a good idea to have a baby with a man who

has been consistent and stable and involved and who . . . loves me.” This

testimony does not support the trial court’s characterization that the couple

“thr[e]w caution to the wind.” In any event, Mckinley and Sommer’s reproductive

25
 No. 79102-8-1/26

choice simply is not a relevant consideration with regard to McKinley’s ‘stability,

maturity, or. . . long term thinking,” much less whether relocation should be

permitted.

Porter attempts to justify the trial court’s finding in his answer to amicus

Legal Voice’s brief.8 He argues that

[a}s an example of Ms. McKinley’s instability, the court noted that
as a single mother with two young sons who was struggling
financially, Ms. McKinley’s decision to “throw caution to the wind,”
was not a sign of stability, maturity, or good long term thinking—
some of the contested issues in this case.

But as discussed, the record does not support a finding that McKinley “thr[e]w

caution to the wind,” and McKinley’s and Sommer’s decision to have a baby

together is not a relevant consideration with regard to McKinley’s stability,

maturity, or long-term thinking. Porter’s argument is unpersuasive.

In short, the trial court’s findings regarding the third relocation factor

improperly focused on what it perceived to be in P.J.M.’s best interests, and the

court’s emphasis on this factor confirms that its relocation decision was based on

the child’s best interests.

Relocation Factor 5

The fifth relocation factor directs the court to consider “[tjhe reasons of

each person for seeking or opposing the relocation and the good faith of each of

8 We do not consider Porter’s remaining arguments in his answer to Legal
Voice’s amicus brief because those arguments are not addressed to new matters
raised in Legal Voice’s brief. Instead, they address arguments raised in
McKinley’s opening brief, to which Porter already had an opportunity to respond.
See RAP I 0.3(f) (“The brief in answer to a brief of amicus curiae should be
limited solely to the new matters raised in the brief of amicus curiae.”).
26
 No. 79102-8-1/27

the parties in requesting or opposing the relocation.” RCW 26.09.520(5).

The trial court found that Mckinley’s initial move to University Place was

not made in bad faith because she “had to move, immediately, and she needed

to find a less expensive place to live.” But it also found that Mckinley’s “decision

to buy a home with her boyfriend before this trial had reached its conclusion” was

in bad faith. Specifically, the court observed that “[tjhis was unnecessary and a

slap in the face to the process and the father’s role in [P.J.M.]’s life.” It found that

Mckinley “could have rented month to month, or sough[t} a leasehold shorter

than one year, to learn the outcome of this proceeding.”

But this finding ignores the evidence. Specifically, Mckinley testified that

she and Sommer had intended to move in together for a while, explaining, “we

are a family and right now we’re having to be a split family.” Mckinley also

testified that she would not qualify for state medical insurance for much longer,

and the only way to get on Sommer’s insurance before their baby was born in

September was to live together. This left Mckinley and Sommer with the choice

either to move into another temporary living situation or to find a more permanent

place to live. To this end, Sommer testified, with regard to the decision to buy a

house, that Mckinley’s apartment lease had expired in June, and although she

could have gone month-to-month, “it was a ridiculous rate.” He also explained

that with McKinley due in September, he and Mckinley did not want to hold off

any longer on their plans to buy a house: “I’d rather get into a house, get it set up

the way [want it so that when my kid arrives it’s nice and comfy.” Sommer

testified that he and Mckinley “Iook[ed} around a lot” for houses, and that the one

27
No. 79102-8-1/28

they ultimately bought was “kind of a . . . diamond in the rough.” Even the court

observed that “[t]he testimony portrayed this house as very special and ideal for

three children.” In short, substantial evidence does not support the trial court’s

finding that McKinley’s decision to buy a house with her partner was in bad faith.

~ Smith, 12 Wn. App. at 582 (appellate court not bound by findings if trial court

capriciously disbelieves uncontradicted evidence).

Porter argues that the court reasonably found that McKinley’s decision to

buy a house was in bad faith. He points out that although Sommer worked in

Seattle, he and McKinley did not look for homes to purchase or rent in King

County. He also points out that the trial court observed that Sommer “admitted

that [he and McKinley] had not really discussed P.J.M.’s parenting plan when

they talked about buying a house”:

When the Court outlined how much driving would need to be done
during the work day, [Sommer’s] face revealed to the Court that he
had absolutely no idea what it would take to implement the
parenting plan. This illustrates that the mother did not treat the trial
court’s parenting plan as a document she needed to follow both to
the letter and in the spirit of co-parenting her son.

But the trial court’s questioning of Sommer in this regard focused on whether or

not he and McKinley had sufficiently considered how a 50-50 plan would work

once P.J.M. began school. One portion of the court’s dialog with Sommer is

particularly revealing: When the court commented that it sounded like the

“specifics” of the future 50-50 plan weren’t “really part of the discussion[,]”

Sommer explained, “I mean it can’t be. If you have to find a place to live, you

have to find a place to live, so . . . .“ The court responded, “Right. But if you

have to move to a 50/50 Parenting Plan, you have to move for a 50/50 Parenting

28
No. 791 02-8-1/29

Plan that is reasonable.” This colloquy reveals that the court expected McKinley

to elevate P.J.M.’s anticipated 50-50 plan above the considerations of her partner

and their growing family. But this is not what the CRA requires. See Homer, 151

Wn.2d at 894 (“Particularly important” with regard to the consideration of the

relocation factors “are the interests and circumstances of the relocating person.”).

To this end, Sommer explained that he and McKinley did not consider rentals

because he and McKinley considered buying a home a “wise financial decision,”

and although Sommer would have liked to purchase closer to Seattle, “it kind of

made sense for us to move where we could afford to live comfortably.”

In short, to the extent that the trial court was concerned about

gamesmanship—i.e., that McKinley purchased a home in University Place to

avoid a future 50-50 plan—that concern is not supported by the record. Rather,

the record reflects that the trial court based its finding not on actual evidence of

gamesmanship, but on a concern about potential gamesmanship. The trial court

found that McKinley had to move to the Tacoma area, immediately. It found that

McKinley “needed to find a less expensive place to live” and that “[s]he had been

offered a good job in Olympia and it made sense to find a home equidistant

between Bellevue and Olympia.” But despite the trial court’s findings regarding

McKinley’s reasons for moving and McKinley’s and Porter’s testimony regarding

their reasons for purchasing a home together, the trial court found that the fifth

relocation factor weighed in Porter’s favor, citing alternatives that McKinley “could

have” chosen but did not. By basing its finding of bad faith on alternatives to

homeownership that McKinley “could have” pursued and ignoring McKinley’s and

29
No. 79102-8-1130

Sommer’s compelling reasons for choosing homeownership, the trial court

essentially placed the burden on McKinley to prove that she did not act in bad

faith. But Porter bears the burden of production and the burden of persuasion in

the relocation context. Therefore, the trial court erred. Indeed, this error was

further compounded by the fact that potential gamesmanship was a weighty

concern to the trial court, which specifically cited the “incentive for

gamesmanship” as a reason to weigh the presumption “somewhat less heavily”

in this case.

Moreover, the trial court’s reasoning that McKinley could have, or should

have, put her homeownership plans on hold to learn the outcome of the

relocation trial violates RCW 26.09.530, which prohibits the court from

considering “evidence on the issue of whether the person seeking to relocate the

child will forego his or her own relocation if the child’s relocation is not permitted.”

Indeed, the court essentially assumed that McKinley would move back—or would

at least consider moving back—if P.J.M.’s relocation was not permitted. But this

is exactly the type of consideration that RCW 26.09.530 prohibits.

Porter contends that McKinley’s argument that the trial court improperly

considered evidence prohibited by RCW 26.09.530 is “strained.” He argues that

the court “simply observed that she purchased a permanent and costly home

with flagrant disregard to the outcome of the proceedings when she could have

waited and made a more informed decision regarding where she wanted to live—

be it in University Place or King County.” But Porter’s argument merely

underscores that the trial court improperly considered “the issue of whether the

30
No. 791 02-8-1/31

person seeking to relocate the child will forego his or her own relocation if the

child’s relocation is not permitted.” RCW 26.09.530.

In considering the fifth relocation factor, the court ignored evidence,

considered issues in violation of RCW 26.09.530, applied a best-interests-of-the-

child lens by centering its focus on the anticipated 50-50 plan, and improperly

shifted the burden to McKinley to prove that she did not act in bad faith.

Relocation Factor 6

Under the sixth relocation factor, the court considers “[tjhe 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.”

RCW 26.09.520(6). Here, again, the trial court’s findings reveal that it ignored

evidence and based its findings on what it believed was in P.J.M.’s best interests.

Specifically, the trial court found that P.J.M. “is reaching the end of the

window of time where he needs to have a consistent relationship with a primary

caregiver.” It also found that “at the moment both parents are equally able to

manage [P.J.M.J’s developmental stage.” And Dr. Wheeler concluded that this

factor weighed equally between the parents. Nevertheless, the trial court

disagreed with Dr. Wheeler and found that this factor weighed “modestly in favor

of the father,” reasoning: “This Court looks ahead one year, to Kindergarten, and

questions whether the mother’s parenting style (as described by [B.R.J’s father

and step-mother) will be as well adapted to [P.J.M.j’s developmental needs as

the father’s.” (Emphasis added.) But in light of the CRA’s “apparent purpose of

31
No. 79102-8-1/32

generally favoring relocation,” McNauqht, 189 Wn. App. at 556, the trial court’s

hearsay-based speculation is not alone sufficient to find that this factor weighs

against relocation.

Furthermore, the trial court’s analysis did not directly address the focus of

this relocation factor—i.e., the impact of the relocation, Instead, the court

engaged in something akin to a parenting plan modification analysis, asking

which parent P.J.M. should live with. But the court must first decide whether to

permit or restrain location, applying the CRA’s statutory presumption in favor of

relocation, before determining what, if any, modifications should be made to the

parenting plan as a result of the decision on relocation. RCW 26.09.260(6).

Here, the trial court “put the cart before the horse” by going directly to the

modification analysis.

Porter argues that the portion of the trial court’s finding stating that “[t]his

factor weighs modestly in favor of the father” is unchallenged and therefore a

verity on appeal. But McKinley’s brief fully advises the court that she takes issue

with the court’s finding that the sixth relocation factor weighed in Porter’s favor,

and the reasons why. Therefore, Porter’s argument is unpersuasive.

Porter next argues that McKinley “misconstrues the court’s finding and

analysis and ignores that the plain language of the factor necessarily requires a

consideration of the impact relocation would have on the child’s future.” But this

argument fails to recognize that the trial court’s findings regarding the impact of

the relocation were based on speculation. Porter’s argument is unpersuasive.

32
No. 79102-8-1/33

Relocation Factor 7

The seventh relocation factor directs the court to consider “[t]he quality of

life, resources, and opportunities available to the child and to the relocating party

in the current and proposed geographic locations.” RCW 26.09.520(7).

McKinley argues that the trial court misapplied this factor by turning it into a

contest between Porter’s household and McKinley’s household rather than

considering the quality of life, resources, and opportunities available to P.J.M.

and Mckinley in the Bellevue area versus the Tacoma area. We agree.

Specifically, the trial court began by observing that Porter’s home “offers a

very high quality of life and more resources than the mother’s,” but also that “[t}he

mother’s new home sounds lovely, and it is quite possible that materially [P.J.M.J

might be equally or close to equally well off in either home.” The court also

observed that at Porter’s home, P.J.M. “has three older siblings who adore him”

and that at Mckinley’s home, “he has a brother he has known his whole life and

will soon have a baby brother or sister.” The trial court nonetheless found that

this factor weighed in Porter’s favor, observing that “[ut is just not clear what will
happen in the mother’s relationship with the boyfriend, without whom she could

not live in the house” and that “[B.R.] has already begun to exhibit some

learning/behavioral issues” and “[t]here will be a big adjustment when the baby

arrives.” But none of these countervailing observations has anything to do with

the relevant focus under this factor, i.e., the current versus proposed geographic

locations. RCW26.09.520(7); ct In re Marriac~e of Griqsby, ll2Wn. App. 1, 12-

13, 57 P.3d 1166 (2002) (holding that trial court properly analyzed seventh

33
No. 79102-8-1/34

relocation factor by considering activities available on Whidbey Island with “what

Dallas had to offer”).

Porter argues that because McKinley did not specifically challenge the trial

court’s finding that the seventh relocation factor weighs in Porter’s favor, that

finding is a verity on appeal. But again, this court has the discretion to “review

findings to which the appellant fails to properly assign error as long as the

appellant has identified those findings and the nature of his challenges to them

elsewhere in the brief.” Bircumshaw, 194 Wn. App. at 199. Porter’s argument is

unpersuasive.

Porter next argues that the trial court’s finding that the seventh factor

weighs in his favor is supported by substantial evidence because the trial court

“noted that the opportunities and quality of life improvements for Ms. McKinley

were potentially not permanent.” But the trial court’s observation about

permanence reached beyond the scope of the inquiry for this relocation factor

because it does not negate the benefits that the “proposed geographic location”

(the Tacoma area) offers. Furthermore, the trial court’s observations about

permanence were based not on evidence in the record, but on pessimistic

speculation about the future of McKinley’s relationship with “the boyfriend.”

Indeed, Porter points to no evidence in the record that supports a finding that

McKinley’s relationship with Sommers was unstable or any more likely to end

than any other relationship. Therefore, Porter’s argument is unpersuasive.

Relocation Factor 8

The eighth relocation factor directs the court to consider “[t]he availability

34
No. 79102-8-1/35

of alternative arrangements to foster and continue the child’s relationship with

and access to the other parent.” RCW 26.09.520(8). With regard to this factor,

the trial court found:

Tacoma may be too far for a 50-50 parenting plan, but it is close
enough that he could have frequent, meaningful access to his
father.
At the moment, it is not possible for the father and [P.J.M.] to talk
on the phone or to Skype given the mother’s refusal to share
contact information, Of course, [P.J.M.] could call his father as long
as his mother would assist.
Given the mother’s attitude about sharing phone information with
the father and her consistent efforts to marginalize him, the Court is
not convinced that the mother would implement consistently
alternative arrangements for [P.J.M.} to communicate with his
father.

In other words, while the court found that alternative arrangements were in fact

available, it was unconvinced that Mckinley would actually utilize them. For the

following reasons, the trial court’s findings again reflect that it failed to apply the

presumption in favor of relocation.

First, the trial court focused solely on access to technological solutions

despite the fact that this is not a case of a parent relocating across or out of

state, where technological solutions may be necessary to foster a relationship.

Put another way, the trial court inexplicably ignored the fact that alternative

arrangements, such as residential schedule modifications, can be made to

ensure that P.J.M. continues to have meaningful access to Porter.

Second, to the extent that the court weighed the eighth factor against

relocation, it impliedly found that despite the fact that alternative arrangements

are available, Mckinley will not utilize them. That finding, however, is speculative

and not supported by substantial evidence. Porter asserts that there “was

35
No. 791 02-8-1/36

testimony that Ms. McKinley did not allow [P.J.M.J to call Mr. Porter,” but the

portion of the record to which Porter cites to support this assertion consists of Dr.

Wheeler relaying an “assumption” voiced by Laegreid that “maybe” P.J.M. was

asking to call Porter while at McKinley’s house and not being allowed to.

Furthermore, the trial court’s implicit finding ignores evidence that McKinley is in

fact willing to implement alternative arrangements. Specifically, McKinley

testified that she proposed that P.J.M. be given a “gizmo” device that could be

used to call Porter. Indeed, by expressing that it was “not convinced” that

McKinley would implement available alternative arrangements for P.J.M. to

communicate with Porter, the court improperly shifted the burden of persuasion

onto McKinley to prove that she will in fact implement available alternative

arrangements to foster P.J.M.’s relationship with Porter. This, too, was error. Cl~

McNauqht, 189 Wn. App. 554 (rejecting argument that once nonrelocating parent

produces sufficient evidence to overcome the presumption by a preponderance

of the evidence, the presumption disappears and the court weighs the evidence

without regard to the presumption).

Porter argues that the trial court’s findings regarding the eighth relocation

factor are supported by evidence that McKinley avoided communicating with

Porter and devalued Porter as a parent. But the fact that McKinley herself

avoided communicating with Porter does not support a finding that McKinley

would prevent P.J.M. from calling Porter or vice versa. Therefore, Porter’s

argument is not persuasive.

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No. 79102-8-1/37

Relocation Factor 9

Under the ninth relocation factor, the court considers “[t]he alternatives to

relocation and whether it is feasible and desirable for the other party to relocate

also.” With regard to this factor, the trial court found:

The father has three older children who attend school in Bellevue.
He shares a 50-50 residential schedule with their mother. He
works at Microsoft and his parenting routine depends on getting
home early enough to manage homework. It is not feasible for him
to relocate.
The mother is doing contract public defense work. She could do
this work or something similar in King County or Snohomish
County. She and Mr. Sommer are apparently able to swing a
$2800/month mortgage. This would cover rent in Bellevue. The
Court understands that under the circumstances, and with a baby
arriving in September, it is not possible for the mother to relocate
back to the Seattle-Bellevue area immediately. However, over the
course of the next year she could find a job or a contract position
and housing.
The Court’s orders will allow a year for this transition.

McKinley argues that “[tjhe court glaringly failed to apply the presumption

to the alternatives to relocation,” and we agree. Specifically, the court was

extremely deferential to Porter’s status quo, summarily finding that it was not

feasible for Porter to relocate based on his 50-50 parenting arrangement with

Erin, his current job, and his “parenting routine.” But the court just as summarily

concluded that alternatives to relocation would be feasible for McKinley despite

her job in Pierce County and her growing family, and without any consideration

for McKinley’s parenting arrangement with Rasmussen. Again, the court’s own

order reveals why it gave less deference to McKinley’s status quo than to

Porter’s: “[TJhe Court believes it would be in the child’s best interests for the

mother to return to King County and for the parties to share residential time with

37
No. 79102-8-1/38

him 50-50.” But as discussed, by prioritizing a future 50-50 arrangement over the

presumed benefits of relocation, the trial court improperly focused its analysis on

P.J.M.’s best interests rather than the presumed benefits of relocation to P.J.M.

and Mckinley.

Moreover, the court’s finding that “over the course of the next year

[McKinley] could find a job or a contract position and housing” in King County is

entirely speculative. Indeed, even Porter cites to no support in the record for this

proposition. The court’s finding is also at odds with its earlier acknowledgment

that McKinley “tried her best to stay [in her home in Bellevue] as she struggled to

find a lawyer job in the Seattle/Bellevue area” and that “[ut is not surprising to this
Court that a new lawyer without connections in the legal field would have

difficulty finding a job.” In other words, the court’s apparent finding that McKinley

had alternatives to relocation not only ignored the statutory presumption but

contradicted its other findings.

Porter argues that the trial court’s finding on this factor was supported by

substantial evidence. He points to the trial court’s finding that McKinley could do

contract public defense work in King County and that the $2,800 that Sommer

and McKinley were spending on their mortgage payment would be sufficient to

afford rent in King County. But again, the court’s finding about McKinley’s ability

to find work in King County—and thus its finding that she and Sommer could

afford $2,800 per month in rent—is speculative. Porter’s argument fails.

Relocation Factor 10

The tenth relocation factor directs the court to consider “[t]he financial

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No. 79102-8-1/39

impact and logistics of the relocation or its prevention.” RCW 26.09.520(10).

The record establishes that the trial court, which did not document its

consideration of this factor, failed to consider it.

‘When this court considers whether a trial court abused its discretion in

failing to document its consideration of the child relocation factors, [it] will ask two

questions.” Homer, 151 Wn.2d at 896. First, ‘[d]id the trial court enter specific

findings of fact on each factor? If not, was substantial evidence presented on

each factor, and do the trial court’s findings of fact and oral articulations reflect

that it considered each factor?” Homer, 151 Wn.2d at 896. “Only with such

written documentation or oral articulations can we be certain that the trial court

properly considered the interests of the child and the relocating person within the

context of the competing interests and circumstances required by the CRA.”

Homer, 151 Wn.2d at 896 (emphasis added).

Here, although the trial court entered enumerated findings for each of the

other relocation factors, the court’s written order omits any finding specific to the

tenth relocation factor. The court made the same omission when it orally recited

its findings, making specific findings regarding every single factor except the

tenth. The only reasonable conclusion from these omissions is that the trial court

failed to consider the tenth factor.

Porter argues that the trial court’s findings indicate that it considered the

tenth relocation factor. He points to the trial court’s finding that McKinley faced

economic challenges that were not appreciated by Dr. Wheeler and that

necessitated McKinley’s initial move to University Place. He also points to the

39
No. 79102-8-1140

trial court’s acknowledgment of the struggles of a recent law school graduate

looking for work. And he argues that substantial evidence supports the trial

court’s finding that McKinley and Sommer pay approximately $2,800 per month

on their mortgage and that this amount would be sufficient to pay for rent in King

County. But these findings are not persuasive for two reasons.

First, as discussed, the fact that the trial court enumerated its findings with

regard to each factor except the tenth indicates that the trial court failed to give

due consideration to the tenth factor regardless of the findings cited by Porter.

Second, even the findings that Porter cites do not constitute full

consideration of the tenth relocation factor. Although the trial court made findings

as to the financial reasons for McKinley’s relocation, it did not properly consider

the financial impacts of preventing relocation. Indeed, as already discussed with

regard to the ninth relocation factor, the trial court’s finding that McKinley and

Sommer could afford $2,800 per month for rent in King County is based on

speculation that McKinley could secure a job in King County. It is also based on

speculation that McKinley would continue to benefit from Sommer’s income if she

were to return to King County, which we note conflicts with the trial court’s (also

speculative) finding that “it isn’t clear that [Sommer] will remain in Ms. McKinley’s

life long term.”

Porter next argues that the trial court properly considered the logistics of

the relocation, contending that “the logistics of the relocation—how a 50/50

parenting plan would work for a school-aged child with parents living in Bellevue

and University Place—was the clear focus of the court’s analysis, and the center

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No. 79102-8-1/41

of the court’s reasoning.” But the proper focus of the tenth relocation factor is the

logistics of the relocation itself, not the impact that the relocation would have on

an anticipated future residential schedule. Indeed, the trial court’s focus on “how

a 50/50 parenting plan would work” only confirms that the court’s analysis was

based on what it perceived was in P.J.M.’s best interests.

Conclusion

The trial court erred by failing to apply the statutory presumption in favor of

relocation, instead weighing the presumption “somewhat less heavily” than it

would have in other cases. And the trial court’s own findings and comments on

the record establish that it conducted its relocation analysis with the subjective

intent of honoring the originally contemplated 50-50 plan. As a result, the trial

court necessarily and erroneously focused its analysis on what it perceived was

in the best interests of the child, rather than by requiring Porter to prove that

McKinley’s decision to relocate with P.J.M. “will in fact be so harmful to [P.J.M.]

as to outweigh the presumed benefits of relocation” to P.J.M. and McKinley.

R.F.R., 122 Wn. App. at 332-33. These errors are borne out in the court’s

findings regarding the relocation factors, which reveal that the trial court at

various times ignored evidence, relied on inadmissible hearsay, improperly

shifted the burden of proof to McKinley, mischaracterized Sommer’s testimony,

improperly considered McKinley’s reproductive choices, and failed to consider

the “[p}articularly important. . . interests and circumstances of the relocating

person.” Homer, 151 Wn.2d at 894. As supported by the factor-by-factor

analysis above, if the trial court had applied the correct standards, relocation

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No. 791 02-8-1/42

should have been permitted. Therefore, reversal is required.

SOLE DECISION-MAKING

McKinley argues that the trial court erred by allocating sole decision-

making to Porter. We agree.

If, as here, one parent is opposed to mutual decision-making and that

opposition is reasonable, the court must order sole decision-making.

RCW 26.09.1 87(2)(b). Under RCW 26.09.187, in considering whether opposition

to mutual decision-making is reasonable, the court “shall consider the following

criteria”:

(i) The existence of a limitation under RCW 26.09.191;
(ii) The history of participation of each parent in decision
making in each of the areas in RCW26.09.184(5)(a);
(iii) Whether the parents have a demonstrated ability and
desire to cooperate with one another in decision making in each of
the areas in RCW26.09.184(5)(a); and
(iv) The parents’ geographic proximity to one another, to the
extent that it affects their ability to make timely mutual decisions.

RCW 26.09.187(2)(b)(iii), (C). This court reviews a trial court’s decision regarding

parental decision-making for an abuse of discretion. In re Marriage of Jensen-

Branch, 78 Wn. App. 482, 490, 899 P.2d 803 (1995).

Here, the trial court stated that Porter’s opposition to mutual decision-

making was reasonable “because of the parents’ lack of ability to cooperate with

each other in decision-making as noted by the parenting evaluator in the parties’

prior and current proceedings.” In other words, the trial court only considered

one of the factors in RCW26.09.187(2)(c), i.e., “[w]hether the parents have a

demonstrated ability and desire to cooperate with one another in decision

making.” RCW 26.09.187(2)(c)(iii). But the trial court “must consider” each of

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No. 79102-8-1/43

the four factors set forth in that statute. Jensen-Branch, 78 Wn. App. at 489. By

failing to do so, the trial court abused its discretion.

Porter argues that the trial court’s order included the requisite findings.

But as discussed, it does not. And Porter does not point to anything in the record

indicating that the trial court actually considered the other three factors in

allocating decision-making. ~ RAP 10.3(a)(6) (arguments must be

accompanied by references to relevant parts of the record). Therefore, Porter’s

argument fails.

ATTORNEY FEES FOR MCKINLEY’S MOTION TO COMPEL

McKinley argues that the trial court erred by declining to impose sanctions

against Porter in connection with McKinley’s motion to compel the production of

communications between Porter and Rasmussen’s wife, Lindsay.9 We consider

this argument waived because McKinley raises it for the first time on appeal.

Specifically, at trial, McKinley’s attorney cross-examined Porter as to why

he did not produce a text message that he sent to Lindsay in response to

McKinley’s requests for production. Porter explained that he did not consider the

text a “communication” because he was simply forwarding a message from

B.R.’s dentist that apparently was sent to Porter by mistake. The court corrected

Porter, explaining, “The forwarding of it, was communication between you and

Lindsay.” McKinley did not request sanctions at this point, nor does she point to

anything in the record indicating that she ever asked for sanctions after it became

~ Because Rasmussen and his wife share a common last name, we refer
to Lindsay by her first name.
43
No. 79102-8-1144

clear that Porter failed to produce the text message. Therefore, she waived this

argument on appeal. RAP 2.5(a); see Rapid Settlements, Ltd. v. Symetra

Life Ins. Co., 166 Wn. App. 683, 695, 271 P.3d 925 (2012) (reason that appellate

court generally will not entertain issues raised for first time on appeal “is to afford

the trial court an opportunity to correct errors”).

McKinley argues that CR 37 makes sanctions mandatory when a party

fails to respond to discovery. But she points to no authority to support the

proposition that the trial court is required to impose sanctions on a sua sponte

basis without any request from a party. Therefore, her argument is

unpersuasive.

ATTORNEY FEES FOR MCKINLEY’S FAILURE TO FILE KING COUNTY
LOCAL FAMILY LAW RULE 10 DOCUMENTS

McKinley argues that the trial court erred by awarding attorney fees to

Porter as a sanction for McKinley’s failure to timely file her LFLR 10 financial

documents. We disagree.

A trial court’s management of a trial, including its decision to impose

sanctions for a party’s failure to follow a pretrial scheduling order, is reviewed for

abuse of discretion. Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65,

69, 155 P.3d 978 (2007).

Here, the trial court entered a pretrial order directing each party to file a

financial declaration, along with all supporting documents required by LFLR 10,

no later than three weeks before trial. Although McKinley provided the LFLR 10

documents to her attorney, her attorney failed to file them. The trial court did not

find credible McKinley’s attorney’s explanation that the failure to file was a

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No. 79102-8-1/45

mistake. Accordingly, the court asked Porter’s counsel to prepare an attorney

fee declaration, indicating that it planned to order McKinley’s attorney to

reimburse Porter for his reasonable attorney fees. Although Porter’s attorney

requested $3,982.50 in attorney fees, the trial court ordered sanctions of only

$2,000.00.

The trial court’s determination that McKinley’s attorney was not credible

cannot be disturbed on appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70

P.3d 125 (2003). Furthermore, in determining the amount of sanctions, the trial

court considered the circumstances as a whole, including the fact that McKinley’s

attorney provides low-cost services on a sliding-scale basis. For these reasons,

the trial court did not abuse its discretion.

McKinley argues that there was no evidence to support the court’s finding

that McKinley’s failure to file the LFLR 10 documents was strategic. But as

discussed, this finding was based on a credibility determination and cannot be

disturbed on appeal. Furthermore, McKinley cites no authority for the proposition

that willfulness is a prerequisite to an imposition of monetary sanctions. CI~

Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 690, 132 P.3d 115 (2006) (Burnet1°

analysis, including consideration of willfulness, not applicable to monetary

compensatory sanctions). McKinley’s argument fails.

McKinley next asserts that her LFLR 10 documents were provided to

Porter through counsel. But the part of the record that she cites establishes only

that it was “not clear that all of the[] documents were presented to [Porter’s

10 Burnet v. Srokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).

45
No. 791 02-8-1/46

attorney].” Therefore, this assertion is not persuasive.

Finally, McKinley argues that “the court compounded its error by

assessing the amount of fees based [on] the fact that [McKinley] appealed the

trial court’s order and pursuant to a Response and Affidavit for Fees that are not

part of the record.” But Porter’s attorney fee affidavit was made a part of the

record, and the trial court considered it. And although the trial court did observe

that McKinley had filed an appeal, the trial court made that observation while

explaining why it was awarding only $2,000.00, rather than the entire $3,982.50

requested by Porter’s attorney. We reject McKinley’s arguments.

ALLOCATION OF DR. WHEELER’S FEES

McKinley argues that the trial court erred by ordering her to pay 33.4

percent of Dr. Wheeler’s fees, rather than allocating Dr. Wheeler’s fees on a pro

rata basis according to the parties’ relative income as reflected in the court’s child

support order. We disagree.

Under RCW 26.09.140, a court may “from time to time after considering

the financial resources of both parties. . . order a party to pay a reasonable

amount for the cost to the other party of maintaining or defending any proceeding

under this chapter and for reasonable attorneys’ fees or other professional fees

in connection therewith.” RCW 26.09.140. “The decision to award fees is within

the trial court’s discretion.” In re Marriage of Knight, 75 Wn. App. 721, 729, 880

P.2d 71(1994). “The party challenging the award bears the burden of proving

that the trial court exercised this discretion in a way that was clearly untenable or

manifestly unreasonable.” Knight, 75 Wn. App. at 729.

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No. 79102-8-1/47

Here, McKinley fails to satisfy that burden. She argues that the court’s

allocation of Dr. Wheeler’s fees conflicts with its oral ruling, pointing to the trial

court’s statement that ‘if we do proportionally [sic] sharing, we’ve got to use her

real income.” She also argues that the court’s allocation “contravenes . . . the

statute that requires the trial court to consider the financial circumstances of the

parties.”

But a trial court’s oral ruling “has no final or binding effect, unless formally

incorporated into the findings, conclusions, and judgment.” In re Det. of B.M., 7

Wn. App. 2d 70, 84, 432 P.3d 459 (internal quotation marks omitted) (quoting In

re De Facto Parentac~e & Custody of M.J.M., 173 Wn. App. 227, 242 n.13, 294

P.3d 746 (2013)), review denied, 193 Wn.2d 1017 (2019). And even though the

trial court originally ordered the parties to split Dr. Wheeler’s fees evenly when it

appointed her as parenting evaluator, it ultimately ordered McKinley to reimburse

Porter for only 33.4 percent of Dr. Wheeler’s fees. This reduction in McKinley’s

proportionate share indicates that the court did consider the parties’ financial

circumstances. McKinley’s arguments fail.

MOTION FOR RECONSIDERATION

Mckinley argues that the trial court erred by denying her motion for

reconsideration, in which she asked the court to reconsider (1) its order denying

relocation and (2) its allocation of Dr. Wheeler’s fees. “Motions for

reconsideration are addressed to the sound discretion of the trial court and a

reviewing court will not reverse a trial court’s ruling absent a showing of manifest

abuse of discretion.” Wilcoxv. Lexington Eye Inst., l3OWn. App. 234, 241, 122

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No. 79102-8-1/48

P.3d 729 (2005).

Here, for reasons already discussed, the trial court did not abuse its

discretion by denying reconsideration as to its allocation of Dr. Wheeler’s fees.

And because we reverse the trial court’s decision on relocation, we do not

consider whether the trial court erred by declining to reconsider that decision.

See Wash. State Farm Bureau Fed’n v. Greqoire, 162 Wn.2d 284, 307, 174 P.3d

1142 (2007) (“[l]f resolution of an issue effectively disposes of a case, we should

resolve the case on that basis without reaching any other issues that might be

presented.” (internal quotation marks omitted) (quoting Hayden v. Mut. of

Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000))).

FEES ON APPEAL

Both parties request fees on appeal. We grant McKinley’s request and

deny Porter’s request.

Under RAP 18.1, we may award attorney fees if authorized by applicable

law. To that end, RCW 26.09.140 provides: “Upon any appeal, the appellate

court may, in its discretion, order a party to pay for the cost to the other party of

maintaining the appeal and attorneys’ fees in addition to statutory costs.” In

exercising our discretion under this statute, we consider “the issues’ arguable

merit on appeal and the parties’ financial resources, balancing the financial need

of the requesting party against the other party’s ability to pay.” In re Marriage of

.~Irn, 179 Wn. App. 232, 256, 317 P.3d 555 (2014).
Here, the issues that McKinley raises on appeal have considerable merit.

Furthermore, McKinley has established financial need. Specifically, McKinley

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 No. 79102-8-1/49

declares that her monthly gross income is $3,728.00. Meanwhile, her portion of

monthly household expenses—which she splits equally with Sommer—totals

approximately $4,171.00. In other words, McKinley’s share of expenses exceeds

even her gross monthly income by $443.00 per month. McKinley also declares

that even after child support payments are taken into account, her monthly

income “barely covers” her share of monthly expenses. To this end, the record

reflects that McKinley is entitled to child support payments from Porter in the

amount of $1,190.62 per month and from Rasmussen in the amount of $312.00

per month. But she represents that Rasmussen is “chronically behind” on

paying—a fact that the trial court took into account when denying Porter any

downward deviation until September 1, 2019. And in any event, McKinley would

be left with little surplus even assuming that she receives the full $1 502.62 in

monthly child support that she is owed from Rasmussen and Porter.

Meanwhile, according to Porter’s financial declaration, his total gross

monthly income is $22,890, and Laegreid’s gross monthly income is $10,833, for

a total gross monthly household income of more than $33,000. Porter states that

his monthly net income after taxes is only $16,525 and that his total monthly

expenses are $15,425 (not including legal fees). But this still leaves a monthly

household surplus of $1,100, before Laegreid’s income is taken into account.

Thus, Porter has not established financial need—rather, his financial declaration

establishes that his ability to pay exceeds McKinley’s. For these reasons, we

grant McKinley’s request for attorney fees and deny Porter’s request.

Porter argues, in an objection to Mckinley’s financial affidavit, that we

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No. 791 02-8-1/50

should decline to consider McKinley’s affidavit because it was not timely. But he

is incorrect: McKinley filed her affidavit within the time period specified by

RAP 18.1(c) and RAP 18.6(a).11 Furthermore, it is Porter’s objection, which was

not filed within seven days after McKinley served her financial affidavit, that is

untimely. ~ RAP 18.1(c) (“Any answer to an affidavit of financial need must be

filed and served within 7 days after service of the affidavit.”). Therefore, we

decline to consider his substantive objections.

Porter also asserts that he should be awarded fees as the prevailing party.

But under RAP 18.1, an award of fees is appropriate only if authorized by

applicable law. RAP 18.1(a). Because Porter cites to no applicable law granting

prevailing party fees, his argument fails.

CONCLUSION

We reverse the trial court’s order restraining relocation and the trial court’s

modifications to the parenting plan and remand to the trial court with instructions

to enter an order allowing P.J.M. to relocate with McKinley. We affirm with

regard to the trial court’s challenged sanctions rulings and its allocation of Dr.

Wheeler’s fees. On remand, we order the trial court to assign the case to a

different judge for the limited purpose of determining what modifications to the

~ RAP 18.6(a) provides that if the last day of a period of time computed
under the rules falls on a Saturday, Sunday, or legal holiday, the period “extends
to the end of the next day which is not a Saturday, Sunday, or legal holiday.”
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No. 79102-8-1/51

parties’ 2016 parenting plan are necessary as a result of P.J.M.’s relocation.

WE CONCUR:

p. 44%f49.

51