In the Matter of the Marriage of: Elizabeth Fernandez & Luis Fernandez
CourtCourt of Appeals of Washington
Date FiledOctober 29, 2026
Docket39948-6
StatusUnpublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
FILED
OCTOBER 29, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ELIZABETH FERNANDEZ, )
) No. 39948-6-III
Appellant, )
)
and )
)
LUIS FERNANDEZ, ) UNPUBLISHED OPINION
)
Respondent. )
STAAB, C.J. — Elizabeth Cooper (formerly known as Fernandez) appeals the
orders modifying the parties’ 2018 parenting plan, the resulting final parenting plan,
denial of reconsideration, and the related child support order. After an eight-day trial, the
court awarded Luis Fernandez sole decision-making authority and primary residential
time based on findings that Cooper’s abusive use of conflict rendered joint custody
unworkable and detrimental to the children. Cooper challenges the court’s application of
the modification statutes and RCW 26.09.191, reliance on the GAL’s opinions, numerous
findings of fact, and multiple procedural, discovery, and evidentiary rulings. She also
seeks to vacate the GAL’s report, vacate the child support order, reassign the judge on
remand, supplement the record under RAP 9.11, and be awarded fees. Fernandez seeks
No. 39948-6-III
In re Parenting Plan of Fernandez
fees for a frivolous appeal. We affirm the trial court’s orders, grant Fernandez his
attorney fees, and deny Cooper’s RAP 9.11 motion.
BACKGROUND
Because the parties are familiar with the facts and background of this case, we
summarize only what is necessary to resolve the appeal.
The parties dissolved their marriage with agreed final orders in 2018, adopting a
joint-custody parenting plan with a week-on/week-off residential schedule, joint decision-
making, mediation for dispute resolution, adherence to medical recommendations with
allowance for second opinions, and use of Our Family Wizard (OFW) for
communications. Despite earlier allegations of domestic violence, the plan included no
RCW 26.09.191 findings or limitations against either parent.
Post-dissolution conflict persisted over medical, educational, therapeutic, and
extracurricular decisions. In February 2021, Fernandez filed a contempt motion alleging
Cooper’s noncompliance with joint decision-making and other plan terms.
Five days later, Cooper petitioned for a major modification, alleging Fernandez
minimized the children’s medical and behavioral needs and failed to participate in
therapies. Cooper also requested sole decision-making, ending dispute resolution, and
imposing RCW 26.09.191 limitations on Fernandez based on alleged domestic violence,
substance abuse, and abusive use of conflict.
2
No. 39948-6-III
In re Parenting Plan of Fernandez
The court found adequate cause based on the children’s needs and conflict impact,
appointed a guardian ad litem (GAL), ordered a co-parenting “boot camp” with Tanya
Wright, and directed use of OFW. After Cooper claimed Wright was biased and refused
to work with her, the court ordered co-parenting counseling with Dr. Scott Whitmer.
Upon meeting with Cooper and Fernandez, Dr. Whitmer required each parent to
complete a psychological evaluation before counseling. Fernandez ultimately completed
an evaluation with Dr. Whitmer; Cooper obtained her evaluation from Dr. Sarah
Vaccarella. Cooper later filed a Department of Health (DOH) complaint against Dr.
Whitmer, who eventually withdrew from providing counseling.
The GAL filed a five-part confidential report in August 2021, concluding Cooper
was driving conflict by overstating problems, misattributing blame to Fernandez, and
misrepresenting providers’ views. The GAL recommended statutory abusive use of
conflict limitations and temporary sole decision-making to Fernandez for nonemergency
medical and educational decisions. The GAL also found no evidence supporting
Cooper’s allegations of Fernandez’s post-2018 domestic violence or substance abuse.
A commissioner entered temporary orders in September 2021 adopting the GAL’s
recommendations and directing that parental decisions not interfere with the other
parent’s residential time.
In early 2022, Fernandez moved for contempt alleging Cooper was violating the
temporary decision-making orders, including enrolling children in activities affecting his
3
No. 39948-6-III
In re Parenting Plan of Fernandez
time. The court found Cooper in contempt and again ordered co-parenting counseling
with Dr. Whitmer, rejecting Cooper’s request to substitute domestic violence counselor
Stan Woody.
Around the same time, the GAL recommended reducing Cooper’s residential time
to alternating weekends based on continued conflict and her enrollment of children in
activities affecting Fernandez’s time.
Amid trial-readiness proceedings, disputes arose about discovery, remote
testimony, and Dr. Whitmer’s raw testing data. On the first day of trial, the court denied
a continuance and explained CR 43(a) requirements for remote testimony. Fernandez
stipulated to admit reports by Drs. Rybicki and Vaccarella in lieu of live testimony, and
the court accommodated in-person testimony by one of the children’s physicians. The
court instructed Cooper to pursue any motion to compel Whitmer’s raw data via noticed
motion with Whitmer’s counsel present. Cooper later filed an amended motion to
compel, but the record does not show a ruling on that motion.
An eight-day trial was held over approximately six weeks. Numerous witnesses
testified including the parties, the GAL, Dr. Whitmer, Dr. Vaccarella, and school
personnel.
After reserving decision and deferring support issues, the court announced its
ruling and entered findings and a final parenting plan. It found Cooper engaged in
abusive use of conflict likely to cause serious psychological harm, credited Fernandez,
4
No. 39948-6-III
In re Parenting Plan of Fernandez
the GAL, and Dr. Whitmer, and entered a plan granting Fernandez sole decision-making
authority and primary residential placement, with Cooper’s alternating-weekend time.
The court denied reconsideration and later entered child support orders.
Cooper timely appeals. CP at 256-83.
ANALYSIS
1. APPLICATION OF MODIFICATION STATUTES AND RELATED ISSUES
Cooper raises numerous arguments challenging the trial court’s decisions related
to the parenting plan. Each is addressed in turn after a review of the relevant standards of
review.
A. Standards of review
In Washington, “the best interests of the child shall be the standard by which the
court determines and allocates the parties’ parental responsibilities.” RCW 26.09.002. In
crafting and ordering a permanent parenting plan, the trial court exercises broad
discretion. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). “We
review a [trial court’s] parenting plan [decisions] for a manifest abuse of discretion.” See
In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). A manifest abuse
of discretion occurs when the trial court’s “‘decision is manifestly unreasonable or based
on untenable grounds or untenable reasons.’” In re Marriage of Chandola, 180 Wn.2d
632, 642, 327 P.3d 644 (2014) (quoting In re Marriage of Katare, 175 Wn.2d 23, 35, 283
P.3d 546 (2012)). “A decision is manifestly unreasonable if, based on the facts and the
5
No. 39948-6-III
In re Parenting Plan of Fernandez
applicable legal standard, the decision is outside the range of acceptable choices.” In re
Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001).
When modifying a parenting plan, “a court abuses its discretion if it fails to follow
the statutory procedures or modifies a parenting plan for reasons other than the statutory
criteria.” In re Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005).
Where a trial court makes findings of fact and conclusions of law, we review
whether the court’s “findings are supported by substantial evidence and whether those
findings support the conclusions of law.” In re Marriage of Akon, 160 Wn. App. 48, 57,
248 P.3d 94 (2011). “Substantial evidence is the quantum of evidence sufficient to
persuade a rational, fair-minded person the premise is true.” Id. at 57. Unchallenged
findings constitute verities on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147
(2004). We need “only consider evidence favorable to the prevailing party.” Akon, 160
Wn. App. at 57.
“Appellate courts do not hear or weigh evidence, find facts, or substitute their
opinions for those of the trier-of-fact. Instead, they must defer to the factual findings
made by the trier-of-fact.” Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710,
717, 225 P.3d 266 (2009). When considering a trial court’s findings, “[w]e do not review
the trial court’s credibility determinations or weigh conflicting evidence ‘even though we
may disagree with the trial court in either regard.’ ” Black, 188 Wn.2d at 127 (quoting In
re Welfare of Sego, 82 Wn.2d 736, 740, 513 P.2d 831 (1973)).
6
No. 39948-6-III
In re Parenting Plan of Fernandez
We review a trial court’s evidentiary decisions and discovery rulings for an abuse
of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997); Magney v.
Truc Pham, 195 Wn.2d 795, 801, 466 P.3d 1077 (2020).
The failure to preserve an issue below by raising an objection generally waives the
issue for appellate review. RAP 2.5(a).
B. Analysis
Cooper’s first issue combines several distinct arguments. We address these issues
in groups.
i. Cooper fails to demonstrate misapplication of the modification statutes
Cooper contends that the trial court failed to correctly apply RCW 26.09.260(1).
She asserts the court placed undue weight on the GAL’s report rather than addressing and
acknowledging prior domestic violence by Fernandez. She further contends that the
court was required to enter a domestic violence finding against Fernandez and impose
limitations on joint decision-making, dispute resolution, and residential time.
Fernandez responds that the trial court properly applied the statutes because
Cooper did not prove that Fernandez committed domestic violence after entry of the
December 2018 parenting plan. Resp’t’s Br. at 34-35. We generally agree with
Fernandez.
“RCW 26.09.260 sets forth the procedures and criteria to modify a parenting
plan.” Halls, 126 Wn. App. at 606. Under RCW 26.09.260(1), the court may modify a
7
No. 39948-6-III
In re Parenting Plan of Fernandez
parenting plan only if it finds “a substantial change has occurred in the circumstances of
the child or the nonmoving party and . . . the modification is in the best interest of the
child and is necessary to serve the best interests of the child.” RCW 26.09.260(1). These
findings must be based on “facts that have arisen since the prior decree or plan or that
were unknown to the court at the time of the prior decree or plan.” RCW 26.09.260(1).
Under RCW 26.09.191(4)(a)(iii), the trial court is required to limit a parent’s
residential time when the court finds that the parent has engaged in “[a] history of acts of
domestic violence.” Similarly, under RCW 26.09.191(5)(c), a trial court is required to
order sole decision making and no dispute resolution other than court action if it is found
that a parent has engaged in “[a] history of acts of domestic violence.” If there is a
mandatory limitation on one parent’s decision making under RCW 26.09.191, then the
court is required to order sole decision making to the other parent if other conditions are
met. See RCW 26.09.187(2)(b). Importantly, the weight given to the existence of a
protection order as to domestic violence is within the discretion of the trial court. RCW
26.09.191(2)(b).
Here, before announcing its ruling, the trial court identified its obligations under
RCW 26.09.260. It found that Cooper had not established facts unknown at the time of
the original dissolution and entry of the prior parenting plan that warranted the
modification she sought. The court also found that Cooper did not prove domestic
violence by Fernandez after entry of the December 2018 parenting plan.
8
No. 39948-6-III
In re Parenting Plan of Fernandez
Cooper’s argument that the trial court refused to acknowledge the history of
domestic violence and make the associated mandatory findings in the parenting plan fails.
Contrary to Cooper’s assertion, the court was aware of the parties’ earlier litigation and
the 2017 temporary protection order. But the parties later entered the December 2018
agreed parenting plan while represented by counsel, and that plan included no RCW
26.09.191 limitations or domestic violence findings against Fernandez.
At the modification trial, Cooper again alleged that Fernandez engaged in
domestic violence and coercive control. The court considered those allegations but found
that Cooper did not establish domestic violence by Fernandez after entry of the December
2018 parenting plan. Because the court did not find that Fernandez had engaged in a
history of acts of domestic violence, it was not required to impose the corresponding
limitations on his residential time under RCW 26.09.191(4)(a)(iii), decision-making and
dispute resolution under RCW 26.09.191(5)(c), or sole decision-making under RCW
26.09.187(2)(b). Further, to the extent Cooper challenges the weight the court gave the
temporary protection order, that determination was within the trial court’s discretion.
RCW 26.09.191(2)(b).
Relatedly, Cooper contends the trial court improperly applied the doctrines of res
judicata and collateral estoppel. But Cooper identifies no ruling in which the court
invoked, analyzed, or applied either doctrine. Nor does she identify a finding or ruling
treating the parties’ earlier litigation as preclusive of her domestic violence allegations.
9
No. 39948-6-III
In re Parenting Plan of Fernandez
An appellant must provide “argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record.”
RAP 10.3(a)(6). Issues presented without meaningful analysis need not be considered.
State v. Rafay, 168 Wn. App. 734, 843, 285 P.3d 83 (2012). Because Cooper does not
identify a ruling applying either doctrine, we decline to consider this argument.
Next, citing RCW 7.105.225(2)(e), Cooper contends that recent acts of domestic
violence are not required for a protection order. Appellant’s Br. at 71. While true, her
argument is of no consequence in this case. Cooper is not appealing the denial of a
request for a protection order. Rather, she is appealing the trial court’s final order and
findings on her petition to modify the parenting plan and the court’s denial of her motion
for reconsideration.
All considered, Cooper fails to show that the trial court misapplied the
modification statutes or abused its discretion in declining to impose the limitations she
sought.
ii. Cooper’s arguments that related to the GAL do not establish an abuse
of discretion
Cooper argues the GAL disregarded and misrepresented the children’s medical
and educational records, and the messages between the parents. She contends the court
compounded the error by basing its findings on the GAL’s opinions and report. She
argues the trial court failed to acknowledge certain evidence that corroborated her
10
No. 39948-6-III
In re Parenting Plan of Fernandez
allegations. Similarly, Cooper contends the trial court failed to exercise its discretion by
relying “almost exclusively on the GAL’s report” while disregarding her evidence.
Appellant’s Br. at 91. She contends the court failed to enter findings reflecting the
testimony from her witnesses. She contends the court also failed to make findings
regarding her credibility.
These arguments do not establish an abuse of discretion. Essentially, Cooper is
challenging the credibility and weight of certain evidence and requesting that we reweigh
the evidence and review the trial court’s credibility determinations. But we will not do
this. See Black, 188 Wn.2d at 127 (“We do not review the trial court’s credibility
determinations or weigh conflicting evidence.”). On appeal, our review is limited to only
“whether the [trial court’s] findings are supported by substantial evidence and whether
those findings support the conclusions of law.” See Akon, 160 Wn. App. at 57.
Nor was the trial court required to enter findings addressing every item of
evidence or the testimony of every witness. See City of Tacoma v. Fiberchem, Inc., 44
Wn. App. 538, 541, 722 P.2d 1357 (1986) (“The trial court is not obligated to make
findings of fact on every contention of the parties. Rather, it is required to find only the
material facts of the case, that is, findings sufficient to inform us, on material issues, what
questions the trial court decided and the manner in which it did so.”). Here, the trial court
entered findings on material facts related to the material issue of whether to modify the
11
No. 39948-6-III
In re Parenting Plan of Fernandez
parenting plan. The court was not required to make a separate finding addressing each
witness’s testimony or to make an express credibility finding as to Cooper.
The record also does not support Cooper’s assertion that the court relied almost
exclusively on the GAL’s report while disregarding Cooper and her witnesses. As
discussed more below, the court’s findings were supported not only by the GAL’s report,
but also the other evidence admitted during trial. To the extent Cooper challenges the
court’s findings as being unsupported, those issues are addressed in issue 2 below.
Regardless, the court’s determination that one witness is more credible than others is
within the fact-finder’s sole purview.
Cooper next argues that the trial court erred by excluding Dr. Rybicki’s work-
product review of the GAL’s report, citing RCW 26.12.175. This argument is without
merit. The court never excluded Dr. Rybicki’s report, rather Cooper failed to offer it for
admission.
Cooper’s reliance on RCW 26.12.175 does not alter the result. RCW
26.12.175(1)(c) permits a party to file a written response to a GAL report and requires the
court to consider a response that is filed. But the statute does not require a court to sua
sponte admit or consider a report that the party does not offer into evidence. Here,
Fernandez agreed to the admissibility of Dr. Rybicki’s report. Later, however, the court
expressly reminded Cooper that the report had not yet been admitted for its consideration.
Cooper does not show that she later offered the report for admission, a ruling excluding
12
No. 39948-6-III
In re Parenting Plan of Fernandez
it, or any other action by the court preventing its admission. As a result, Cooper fails to
show the trial court abused its discretion.
iii. Cooper does not establish that the trial court abused its discretion in
its procedural and evidentiary rulings
Cooper argues the trial court abused its discretion by holding her, as a pro se
litigant, to the same standards as an attorney. Appellant’s Br. at 84-85. This argument
lacks merit. Courts are required to hold pro se litigants to the same standards as
attorneys. See, e.g., In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155
(1983) (“[T]he law does not distinguish between one who elects to conduct his or her
own legal affairs and one who seeks assistance of counsel—both are subject to the same
procedural and substantive laws.”). Thus, the court did not abuse its discretion by
requiring Cooper to comply with court rules governing discovery, subpoenas, exhibits,
and witness testimony.
Cooper next argues the trial court abused its discretion by failing to enter a
scheduling order and require pretrial disclosure of Dr. Whitmer’s anticipated testimony.
She contends that, without a scheduling order, she missed procedural deadlines, including
deadlines related to arranging remote expert testimony.
Fernandez responds that this Title 26 proceeding was exempt from the scheduling-
order requirement under Yakima LCR 40, that Cooper never requested a scheduling
order, and that she never served discovery seeking information concerning his expert
13
No. 39948-6-III
In re Parenting Plan of Fernandez
witnesses. He further argues that Cooper’s inability to obtain Dr. Whitmer’s raw testing
data resulted from her failure to comply with the statutory procedures governing health
care information discovery and her failure to serve appropriate discovery before trial.
In Cooper’s reply brief, she invokes Yakima’s local family law rules (LFLR) 1
and asserts that the court was required to initiate a case schedule upon filing of a
summons and petition.
Fernandez is correct that the civil case scheduling order requirements did not
apply to this Title 26 proceeding. Yakima LCR 40(a)(3)(B)(1) expressly exempts
domestic relations under Title 26 RCW proceedings from the requirement to file a civil
case scheduling order. However, Cooper correctly points out that Yakima LFLR 1(a)
separately required the court to issue a scheduling order upon the filing of a summons
and petition in a family law action. Based on the record, it is unclear whether the trial
court entered a scheduling order when Cooper’s initial summons and petition were filed.
Regardless, Cooper fails to demonstrate prejudice from the lack of a scheduling
order. The court entered a trial readiness order, more than six months before trial began,
requiring the parties to file any proposed disqualifications and exchange witness lists and
exhibits. The trial readiness order gave Cooper more than six months’ notice of the
deadlines for disqualifications, witness lists, and exhibits. Even given that the court
should have entered an earlier scheduling order under Yakima LFLR 1(a), Cooper does
14
No. 39948-6-III
In re Parenting Plan of Fernandez
not identify what additional deadline or procedural protection that order would have
supplied or explain how its absence impaired her ability to prepare for trial.
Cooper likewise fails to establish prejudice from the alleged lack of pretrial
disclosure of Dr. Whitmer’s anticipated testimony. When Cooper raised her concern that
Fernandez had not disclosed anticipated witness testimony, the court explained that she
could obtain that information through formal discovery, including interrogatories,
requests for production, requests for admission, or depositions. Cooper acknowledged
that she had not served formal discovery and that the parties had not agreed to conduct
discovery by email. She therefore does not show that Fernandez violated a discovery
obligation or that the court abused its discretion by declining to require additional
disclosure.
Cooper’s argument concerning Dr. Whitmer’s raw testing data likewise fails to
establish an abuse of discretion. When Cooper raised the issue on the first day of trial,
the court explained that it could not resolve the matter without Dr. Whitmer and his
counsel being present. The court later directed Cooper to note a special motion for
hearing and coordinate that hearing with the court administrator. During the break
between the December trial dates and the January continuation, Cooper filed an amended
motion asking the court to compel Fernandez to sign a release authorizing Dr. Whitmer to
provide the raw testing data from Fernandez’s September 2022 psychological evaluation
directly to Dr. Rybicki for review. Alternatively, Cooper requested a subpoena duces
15
No. 39948-6-III
In re Parenting Plan of Fernandez
tecum for documents related to the raw data. Cooper also opposed Dr. Whitmer’s request
for a protective order and argued that raw testing materials could be released directly to
another psychologist or as directed by the court.
But the request was subject to the statutory procedures governing disclosure of
health care information. See RCW 70.02.060. Cooper’s amended motion acknowledged
that statute but did not establish that she had complied with it. The record also does not
clearly show when or how the court considered Cooper’s amended motion, and Cooper
does not identify a ruling denying a properly presented request for the raw testing data.
Nor does she explain how the absence of the raw data probably affected the court’s
decision, given that Dr. Rybicki’s work-product review was available to her, Fernandez
agreed to stipulate to the admission of Dr. Rybicki’s report, and Cooper ultimately did
not offer that report. On this record, Cooper fails to show that the trial court abused its
discretion.
Cooper likewise fails to establish that the trial court abused its discretion when
denying her request to permit certain witnesses to testify remotely. Under CR 43(a)(1),
the court has discretion to permit remote witness testimony. However, a party seeking to
present remote witness testimony must provide notice no less than 10 days prior to trial
absent a showing of good cause. CR 43(a)(1). Cooper did not seek permission to present
expert witness testimony remotely until the first day of trial. The court explained that
remote testimony required advance notice showing compelling circumstances and
16
No. 39948-6-III
In re Parenting Plan of Fernandez
appropriate safeguards under the court rules. Cooper fails to show an abuse of discretion
considering that she did not provide the required notice and failed to demonstrate good
cause.
Cooper next contends that the trial court abused its discretion by denying her
request for a continuance. Cooper fails to identify which request of hers was denied, the
reasons why the trial court denied the continuance, and any authority supporting her
argument. See RAP 10.3(a)(6). We therefore decline review of this passing argument.
Cooper contends she was denied the opportunity to present “retroactive evidence
and testimony,” which would have evidenced her allegations of coercive control and
domestic violence by Fernandez. This argument is without merit. As discussed above,
under RCW 26.09.260(1), the trial court was permitted to consider facts that were either
unknown to it at the time the December 2018 parenting plan was entered, or facts that
occurred since that time. The trial court correctly articulated its obligation under the
statute and correctly applied the statute.
Cooper next argues that the trial court “abruptly curtailed” her testimony and
“inexplicably” canceled a post-evidentiary hearing, depriving her of an opportunity to
present her case. Again, she fails to identify where in the record the court took these
actions and where she objected, and she fails to cite any legal authority supporting her
arguments. See RAP 10.3(a)(6). Without such meaningful analysis, we decline to review
these arguments.
17
No. 39948-6-III
In re Parenting Plan of Fernandez
Cooper next contends that the court “went out of its way to initiate discovery”
concerning her proposed expert Barry Goldstein’s anticipated testimony while denying
her discovery concerning Dr. Whitmer. She contends the court treated her unfairly by
requiring her to provide Goldstein’s materials to Fernandez even though Fernandez had
not filed a formal discovery motion. Fernandez argues the court acted within its
discretion to avoid needless waste of time under RCW 2.28.010 and ER 611. We agree
with Fernandez.
The court did not reopen discovery or compel discovery on Fernandez’s behalf.
On the first day of trial, Cooper identified Goldstein as one of several witnesses she
wanted to present remotely. Fernandez objected to remote testimony, and Cooper
acknowledged that she did not have a report from Goldstein. On the fifth day of trial,
when Cooper again raised Goldstein as a proposed witness, the court attempted to
determine how much additional time was needed to complete trial and how to manage
any remaining expert testimony. The court directed Cooper to provide Goldstein’s
materials to Fernandez so that Fernandez could review them and prepare for cross-
examination if Goldstein testified. But when trial resumed in January, Cooper stated that
Goldstein would not testify because she could not afford his travel fees.
The court’s ruling was within its discretion. RCW 2.28.010(3) authorizes a court
to provide for the orderly conduct of proceedings before it. ER 611(a) likewise requires
the court to “exercise reasonable control over the mode and order of . . . presenting
18
No. 39948-6-III
In re Parenting Plan of Fernandez
evidence so as to . . . [make the] presentation effective for the ascertainment of the truth .
. . [and to] avoid needless consumption of time.” Here, the court was managing an
ongoing trial and addressing a proposed expert witness whose testimony Cooper sought
to present after the court had already denied a continuance and after several days of
testimony had occurred. Requiring Cooper to provide the materials supporting
Goldstein’s anticipated testimony was reasonably designed to avoid surprise, permit
meaningful cross-examination, and prevent wasting additional trial time. The court’s
handling of Dr. Whitmer’s raw testing data was not comparable because that request
implicated statutory procedures and protections governing health care information, and
Dr. Whitmer opposed disclosure through counsel.
Cooper also argues that the trial court abused its discretion by permitting Dr.
Whitmer to offer opinions outside the bounds of his professional competence, including
his opinion that Cooper engaged in abusive use of conflict. The record does not show an
abuse of discretion. The court accepted Dr. Whitmer as an expert in psychotherapy and
forensic evaluations after considering Cooper’s objection. It also considered Cooper’s
objections to Whitmer’s opinions concerning a potential conflict of interest and his
review of Dr. Vaccarella’s report. The court ruled that Cooper’s asserted concerns about
Whitmer’s dual roles and potential bias went to the weight of his testimony rather than its
admissibility. Cooper does not show that those rulings were manifestly unreasonable or
rested on untenable grounds. Thus, she fails to show an abuse of discretion.
19
No. 39948-6-III
In re Parenting Plan of Fernandez
Cooper contends the court improperly admitted one of the children’s hearsay
statements concerning dance classes. But she does not identify the particular statements,
the ruling admitting them, a contemporaneous objection, or the hearsay rule that she
contends the court misapplied. Thus, we decline to entertain this undeveloped argument.
See RAP 10.3(a)(6).
iv. Cooper’s remaining arguments fail to establish an abuse of discretion
Cooper argues the trial court “unjustly found” that she engaged in acts of abusive
use of conflict. She contends the court’s conclusion was unsupported and that the court
failed to make express findings explaining why abusive use of conflict justified limiting
her decision-making authority and residential time. Fernandez responds, arguing that the
court’s conclusion is supported by its findings which are in turn supported by
Fernandez’s testimony at trial. We agree with Fernandez.
Here, the court’s abusive use of conflict conclusion is supported by its findings
that the parties’ inability to interact had harmed the children and created the potential for
substantial problems. The court found that Cooper enrolled one of the children in three
dance classes and another in basketball without Fernandez’s agreement, even though the
activities occurred during Fernandez’s residential time. The court also found that Cooper
sabotaged the court-ordered co-parenting counseling process. Based on its findings, the
court concluded that the parents’ inability to work together and Cooper’s abusive use of
conflict rendered joint custody unworkable and detrimental to the children, thereby
20
No. 39948-6-III
In re Parenting Plan of Fernandez
justifying the modification of residential time. It further concluded that modifying both
the residential and nonresidential provisions of the 2018 parenting plan was necessary to
serve the children’s best interests. Additionally, the court concluded that the advantages
of changing the children’s environment outweighed the likely harm and that modification
was necessary to reduce parental conflict that harmed the children.
To the extent Cooper challenges those findings, they are supported by substantial
evidence. Fernandez testified that Cooper enrolled the child in dance classes occurring
during his residential time without his agreement and that the resulting dispute placed the
child in conflict with him. The GAL’s report and testimony likewise addressed the dance
class dispute and the effect of the parents’ conflict on the children. The court was
entitled to credit that evidence. See Black, 188 Wn.2d at 127-28.
Relatedly, Cooper argues there was no testimony to corroborate Fernandez’s
testimony that the child was in conflict with him. This argument is without merit.
Regardless of whether there was additional evidence to corroborate Fernandez’s
testimony, the court was entitled to find Fernandez credible and find facts based on his
testimony. See id. Our review for substantial evidence does not include whether the
evidence supporting the challenged findings is separately corroborated by substantial
evidence. See Akon, 160 Wn. App. at 57.
Cooper next argues that the court’s temporary orders punished her. She claims the
trial court and the GAL “engaged in retaliatory practices” against her for raising concerns
21
No. 39948-6-III
In re Parenting Plan of Fernandez
about domestic violence and filing a complaint against Dr. Whitmer. But she does not
identify the temporary orders she challenges, a preserved objection, or authority
establishing that the orders constituted retaliation. We therefore decline to consider these
unsupported arguments. See RAP 10.3(a)(6).
Cooper next contends the trial court violated her First Amendment right to the
United States Constitution to free speech when it modified the parenting plan. Although
she did not raise this argument in the trial court, she is permitted to raise it for the first
time on appeal. In re Dependency of T.L.G., 139 Wn. App. 1, 19, 156 P.3d 222 (2007)
(“Issues involving the exercise of free speech in the civil arena can be raised for the first
time on appeal.”). However, Cooper fails to establish a First Amendment violation.
Her argument appears to be that the GAL and the court retaliated against her for
raising domestic violence concerns, filing a complaint against Dr. Whitmer,
communicating about the children’s needs, and petitioning the court and the DOH for
assistance. But she does not identify a parenting plan provision that restricts her ability to
report domestic violence, communicate with providers, petition the court, or file
complaints with government agencies. Nor does she identify a finding or ruling showing
that the court modified the parenting plan because of protected speech. And none of the
authority she cites supports her arguments.
Cooper’s related references to void-for-vagueness and overbreadth principles fail
for the same reason. She cites inapplicable, nonbinding federal authority, but does not
22
No. 39948-6-III
In re Parenting Plan of Fernandez
identify any vague parenting-plan provision, any provision that restricts a substantial
amount of protected speech, or any order that unlawfully restricts protected speech or
conduct. Her generalized constitutional assertions therefore do not show that the court’s
modification decision violated the First Amendment.
Cooper next argues the court “acted against judicial protocol” when it crafted the
parenting plan. She contends the court failed to acknowledge its responsibility to craft a
plan in the best interests of the children. This argument fails. The trial court explicitly
found that its modification of the parenting plan was appropriate and necessary to serve
the children’s best interests.
Cooper contends the court’s plan created “flashpoints with exchanges,” and
contained ambiguous language, dispute resolution, and a holiday schedule favoring
Fernandez. These arguments are all without merit. Cooper does not identify any legal
authority supporting her arguments, nor does she cite to any place in the record
supporting her claims. For these reasons, we decline to review these undeveloped
arguments. See RAP 10.3(a)(6).
Finally, citing the “Uniform Child Abduction Prevention Act,” Cooper argues the
trial court “issued provisions pertaining to passports without proper findings or
justifications” and without acknowledging “significant abduction risk factors.”
Appellant’s Br. at 102. These arguments fail. First, Cooper did not raise these arguments
in the trial court, so they are unpreserved. See RAP 2.5(a). Moreover, Cooper fails to
23
No. 39948-6-III
In re Parenting Plan of Fernandez
cite to the record or any authority supporting her arguments. See RAP 10.3(a)(6). We
therefore decline to review these arguments.
The trial court did not abuse its discretion when it modified the parenting plan.
2. FINDINGS OF FACT
Cooper assigns error to numerous findings of fact. We conclude the court’s
findings are largely supported by substantial evidence and that the findings support the
conclusions of law.
Cooper assigns error to 11 findings of fact. However, she does not meaningfully
apply the substantial ev