Ethan Joseph Bergerson v. Maria Teresa Zurbano

                                                                         ILL U
                                                             C URT OF APPEALS DiV
                                                              STATE OF WAS~HGTW
                                                              2Oi80EC2~ ~ 9:01

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE

ETHAN JOSEPH BERGERSON,                           )      No. 77407-7-I

                            Appellant,            )
                v.                                )
                                                  )      PUBLISHED OPINION
MARIA TERESA ZURBANO,                             )
                                                  )      FILED: December24, 2018
                            Respondent.


           VERELLEN,   J.   —   The child relocation act (CRA)1 does not apply to a 50/50

parenting plan. The statute still does not apply even though the parents added

language to the plan that either one of them must give notice of relocation under the

CRA.

           Ethan Bergerson appeals the trial court’s dismissal of his petition to relocate,

which he submitted pursuant to the CRA. But the trial court did not commit any

reversible error. First, it correctly followed In re Marriage of Worthley2 in declining to

apply the CRA to a 50/50 parenting plan. Second, parties to a 50/50 parenting plan

cannot use an agreement on notice pursuant to the CRA to avoid the heightened

statutory protections for the child’s interests that otherwise would apply to a major

change in a residential schedule.



       1    RCW 26.09.405-.560.
       2    

, 

 (2017).
 No. 77407-7-1/2


        Therefore, we affirm.

                                                      FACTS

        Ethan Bergerson and Maria Zurbano have one child. In 2012, they divorced

and agreed to a parenting plan. From the time of divorce through mid-2016, as

provided in the parenting plan schedule, the child resided a majority of the time with

his mother. In 2016, the court approved a new, mutually agreed-upon parenting plan.

The plan changed so “[r]esidential time shall be equally shared on a 50/50 basis,

adhering to a 2-2-5-5 biweekly schedule.”3 The parents also share joint decision

making. The plan designated both parents as custodians with “equal rights and

responsibilities.          .   .   and wherever the law allows be deemed to be joint

custodians.   .   .   .   for purposes of all state and federal statutes which require a

designation or determination of custody.”4

       The mandatory portion of the 2016 plan summarizing the CRA included two

customized provisions. The first states, “If either parent plans to move, that person

shall give notice to every person entitled to court ordered time with the child.”5 The

second states, “Because each parent has the child 50 [percent] of the time, this

provision will be deemed to apply equally to both parents. That is, either parent must

give the requisite notice to the other and to all affected parties as specified by the

statute.”6


       ~ Clerk’s Papers (CP) at 2.
       ~ CP at 5-6.
       5CPat6.
       6CPat7.


                                                        2
 No. 77407-7-1/3


        On April 26, 2017, the father filed a “Notice of Intent to Move with Children

 (Relocation)” form pursuant to the CRA.7 He wanted to move from Seattle to

 Baltimore with his new wife and his son because his wife matched into a five-year

residency in emergency medicine and pediatrics at the University of Maryland Medical

Center beginning in late June of 2017.

       The father served the mother with notice of his relocation petition on April 30,

2017. One month later, the mother filed an objection. At a hearing on the father’s

petition, the court concluded that the CRA did not apply and that the father had not

shown adequate cause to hold a modification hearing. The court dismissed both the

relocation petition and the mother’s objection because they were made pursuant to

the inapplicable CRA. The court granted the father’s motion to reconsider but again

denied his petition and dismissed the proceeding.

       The father appeals.

                                       ANALYSIS

       Whether a court erred in its interpretation and application of a statute is a

question of law we review de novo.8 Interpretation of a parenting plan is also a

question of law we review de novo.9 If a parent seeks to modify a parenting plan,




        7CPatll7.
        8 In re Welfare of A.G., 

, 

 (2010); In re

Marriage of Wilson, ll7Wn. App. 40,45,

 (2003).
        ~ Kirshenbaum v. Kirshenbaum, 

, 

 (1997);
see In re Marriage of Cota, 

, 

 (2013)
(“Interpretation of a child support order is a question of law that we review de novo.”)
(quoting In re Marriage of Sagner, 

, 

 (2011)).


                                            3
 No. 77407-7-1/4


 a court has discretion when deciding whether adequate cause exists to hold a

 modification hearing.10 A court abuses its discretion if its decision is “based on

 untenable grounds or untenable reasons.”11

 I. ApplicabiHty of the CRA to a 50/50 Parenting Plan

        The CRA defines “relocate” as “a change in principal residence either

permanently or for a protracted period of time.”12 When a parent with whom the child

is scheduled in the parenting plan to reside a majority of the time decides to relocate,

he or she must notify anyone “entitled to residential time or visitation with the child.”13

Relocations are presumptively permitted and must be allowed if no one objects within

30 days of receiving notice.14

       However, where the parties have a 50/50 parenting plan, the plain language of

the CRA prevents its application. “In a 50/50 residential schedule, neither parent is ‘a

person with whom the child resides a majority of the time,’ so neither parent is

entitled to the CRA’s presumption permitting relocation.”15

       In this case, both parents equally share residential time on a 50/50 basis as

well as being joint decision makers. Because the court found the parties have a

50/50 parenting plan and the CRA does not apply to 50/50 plans, the father cannot


       10   In re Parentage of Jannot, 

, 

 (2003).
       ~ In re Marriage of Littlefield, 

, 

 (1997).
       12   RCW 26.09.410(2).
       13   RCW 26.09.430.
       14   RCW26.09.500(1), .520.
       15In re Marriage of Snider, No. 77583-9-I, slip op. at 6 (Wash. Ct. App. Dec. 3,
2018), http://www.courts.wa.gov/opinions/pdf/775839.pdf (quoting RCW 26.09.430).


                                            4
 No. 77407-7-1/5


 petition for relocation pursuant to the CRA. Consistent with In re MarriaQe of Snider16

and Worthley,17 the court did not err by dismissing the father’s petition.

        The father contends the court erred by refusing to consider the best interests

of the child when it dismissed his petition. But the court is not required to consider

the child’s best interests during a procedural adequate cause hearing, and the court

has discretion when determining whether a modification hearing is necessary.18

       The court concluded the father did not make a showing of adequate cause

because he petitioned for relocation based only on the CRA rather than following the

modification procedures listed in RCW 26.09.260 and .270. The parent seeking

modification must submit affidavits to show adequate cause exists to require a

modification hearing.19 The court did not abuse its discretion by declining to hold a

modification hearing.20

       The required showing of adequate cause is a statutory procedural requirement

that does not directly implicate the child’s best interests.21 Once adequate cause is

established and the court is engaged in an evidentiary modification hearing, then the


       16  No. 77583-9-I, slip op. at 6 (Wash. Ct. App. Dec. 3, 2018),
http://www.courts.wa.gov/opinions/pdf/775839.pdf.
        17198 Wn. App. at 428.
        18 Jannot, 

.

       19   RCW 26.09.270.
       20 We note the court invited the father “to refile. as a motion action and see if
                                                         .   .



you can meet adequate cause in order to be able to go forward,” but he appealed
instead. Report of Proceedings (July 7, 2017) at 16.
       21 See Jannot, 

 (holding that courts have discretion when
evaluating affidavits setting forth facts supporting the requested modification to
determine whether a modification hearing is necessary).


                                           5
 No. 77407-7-116


child’s best interests come into play. The trial court correctly declined to consider the

best interest of the child at this stage of the proceedings.22

       In the alternative, the father contends the court did not need to hold a

modification hearing because he merely sought a “minor modification” pursuant to

ROW 26.09.260(5). But minor modifications cannot “change the residence the child

is scheduled to reside in the majority of the time.”23 Under the current 50/50

parenting plan, the parties’ son does not reside anywhere the “majority of the time.”

The father’s proposed parenting plan would have his son reside with him a majority of

the time, unless the mother relocated to within 30 minutes of his residence in

Maryland.24 Because this would significantly change the residence the child is

scheduled to reside in a majority of the time, this is not a minor modification.25

II. Applying the CRA to a 50/50 Parenting Plan by Agreement

       Regardless of the CRA’s own terms, the father argues the customized

language in the parenting plan incorporates the CRA by agreement. The narrow

issue before us is whether the agreed customized language in this parenting plan


      22  The father also argues In re Marriage of Homer, 

, 

 (2004), requires explicit consideration under the CRA of the child’s best interest as
measured by all 11 factors in section .520 when dismissing a relocation petition. But
Homer is distinguishable because the child in that case was scheduled to reside a
majority of the time with the relocating parent, so the CRA applied. Homer, 

.
       23 RCW 26.09.260(5).

      24   The record does not reveal any prospect of the mother relocating to Maryland.
      25  See Snider, No. 77583-9-I, slip op. at 8-9 (holding a mother’s proposed
relocation was not minor because it would effectively modify her 50/50 parenting plan to
something other than a 50/50 by creating a residence where the children reside a
majority of the time).


                                            6
No. 77407-7-1/7


results in application of the CRA. We need not reach the broader and more general

question of whether any language contained in 50/50 parenting agreement approved

by the court might have some impact on a proposed relocation. Because

incorporating the CRA by agreement into this plan, where it is otherwise inapplicable,

raises a variety of concerns, we are not persuaded by the father’s argument.

       Section 3.14 of the parties’ 50/50 parenting plan is titled “Summary of ROW

26.09.430-480, Regarding Relocation of a Child.”26 Most of the language in the

section is identical to the form language used in their initial parenting plan and to the

notice provisions of the CRA, but the parents agreed on two customized additions.

The first addition states, “If either parent plans to move, that person shall give notice

to every person entitled to court ordered time with the child.”27 The second addition

states, “Because each parent has the child 50 [percent] of the time, this provision will

be deemed to apply equally to both parents. That is, either parent must give the

requisite notice to the other and to all affected parties as specified by the statute.”28

But the summary itself in section 3.14 does not address whether the CRA’s other

provisions, such as the statutory presumption and relocation factors in

RCW 26.09.520, would apply. The plain language and policy of the CRA suggests

they should not.

      The CRA eases the process for relocation by the parent with whom the child

resides a majority of the time by creating “a rebuttable presumption that the intended


      26CPat6.
      27CPat6.
      28 CP at 7.




                                            7
 No. 77407-7-1/8


 relocation of the child will be permitted.”29 It “incorporates and relies on [the]

traditional presumption” that fit parents act in a child’s best interest, so any relocation

by the parent with whom the child is scheduled to reside a majority of the time must

be in the interests of both that parent and the child.3°

        By contrast, a 50/50 plan is a court-approved endorsement of the parents’

equal fitness. When one parent in a 50/50 plan petitions for relocation and the other

opposes it, then, consistent with the traditional presumption, both equally fit parents

are acting equally in the child’s best interest. Because the CRA’s rebuttable

presumption cannot be logically applied, it is inapplicable to this 50/50 plan.31

       Even if the parents had expressly agreed to apply the CRA except for the

rebuttable presumption, the CRA’s relocation factors do not squarely fit their 50/50

plan.32 A court evaluating a relocation petition following a parental objection “must

consider each of the [11] child relocation factors” listed in RCW26.09.520 to

determine “whether the ‘detrimental effect of the relocation outweighs the benefit of

the change to the child and the relocating person.”33 Several factors do not fit the

parents’ 50/50 plan.



       29   RCW 26.09.520.
        30Worthley, 198 Wn. App. at431.
        31      In re Marriage of McDermott, 

, 

(2013) (“When construing statutes, ‘[ut is fundamental that. we avoid absurd
                                                                .   .


results.”) (alterations in original) (quoting Lowy v. PeaceHealth, 

,

 (2012)).
        32 See Homer, 

 n.10 (“Many of the child relocation factors refer
to the interests and/or circumstances of the relocating person.”).
            j4 (quoting RCW 26.09.520).


                                             8
 No. 77407-7-1/9


        First, a court would be forced to alter or disregard two of the factors. Factor

three states a court must weigh “[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.”34 This factor expressly presumes there is a parent with

whom the child is scheduled to reside the majority of the time. We cannot rewrite this

factor on appeal to apply to the 50/50 plan.35

       Factor seven states a court must weigh “[t]he quality of life, resources, and

opportunities available to the child and to the relocating party in the current and

proposed geographic locations.”36 By its plain language, this factor considers only

the relocating parent’s current and proposed circumstances, with no counterbalanced

consideration of the other parent’s circumstances. Such a one-sided approach

undermines the nonrelocating parent’s interests and makes little sense when, as

here, equally fit parents are deemed to both be acting in their child’s best interests.

       Second, parents may not alter by agreement the statutory protections provided

for their child by the Parenting Act of 1 987~~ and the CRA.38 As we recognized in In


       ~ RCW 26.09.520(3) (emphasis added).
      ~ Rivard v. State, 

, 

 (2010) (terms of a statute
should not be interpreted to render them meaningless or superfluous).
      36 RCW 26.09.520(7).

       ~ Chapter 26.09 RCW.
       38 See Littlefield, 

 (“[A] trial court is not required to follow the
terms of a separation agreement which relate to the parenting of children.”) (citing
RCW 26.09.070(3)); Hammack v. Hammack, 

, 

(2003) (“Courts have found [parental agreements waiving child support] unenforceable
even if in a final order agreed upon by the parties and not appealed.”). The cases


                                            9
 No. 77407-7-1110


 re Marriage of Adler, parents may waive statutory protections for themselves but not

their children.39 In Adler, a parenting plan provided that for the first seven months of

the plan, either party could request review of the residential schedule and decision-

making provisions without conducting the usual adequate cause hearing required by

ROW 26.09.260(1) and .270.~° We upheld the provision because the prerequisite

adequate cause determination for a modification hearing existed to protect the

parents, not the children, from useless evidentiary hearings.41 “The best interests of




 Bergerson relies on for this point are not germane because none involve parental
waiver of protections for children. In re Marriage of Short, 

, 

 (1995) (childless couple disputing unique terms in a spousal maintenance
agreement); In re Marriage of Lee, 

, 

 (2013)
(upholding additional provisions in a spousal maintenance agreement); In re Marriage of
 Hulscher, 

, 

 (2008) (upholding additional terms in a
spousal maintenance agreement). The father cites In re Marriage of Raskob, 

, 

 (2014) for the proposition that courts uphold agreed-
upon modifications to the CRA. But the Raskob court merely enforced an agreed plan
provision that the mother, with whom the children were scheduled to reside a majority of
the time, give 60 days’ notice if she sought to relocate beyond a 30-minute driving
distance from the father’s residence. In re Marriage of Raskob, 

, *1
n.5, 

 (2012) (unpublished opinion). The agreement to give the
nonrelocating parent additional protection did not alter the applicable protections of the
child. The father also cites In re Marriage of Grigsby, 

, 

(2002), to support his argument. But the parents in Grigsby explicitly agreed in their
Colorado dissolution decree that the mother would have primary residential custody, the
plan functioning as a 50/50 residential split. k~. at 4, 16. Thus, while not directly
addressed on appeal, the trial court’s reliance on the CRA’s relocation factors was
appropriate because the plan designated a “primary residential custodian.”
       ~ 

, 

 (2006).
         ki. at 721. Although the parent who requested review did so after about 18
months, k~. at 720-21, this does not appear to have been an issue on appeal.
      41 ki. at 724.




                                          10
 No. 77407-7-Ill I


 the children remain protected by the standards in RCW 26.09.260 as applied by the

 court in the modification hearing.”42

        Relying on Adler, the father contends that the parents’ agreement requires us

to apply the CRA’s relocation factors. So we must consider whether the relocation

factors in RCW 26.09.520 provide the same protections to children as the

modification statute or the provisions of RCW26.09.187, which govern residential

schedules in the first instance.

       The underlying goal of RCW 26.09.1 87(3) is to protect the best interests of the

child.43 Although RCW 26.09.520 also aims to protect the best interests of the child,

the statutes address different considerations.44 For example, relocation factor (5) in

RCW 26.09.520 considers “[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” and does not consider the child’s interests at all.45

       In addition, the criteria from RCW 26.09.187(3)(a) are weighted differently than

those in RCW 26.09.520. Central among the factors in RCW 26.09.187(3)(a)(i) is


       42   

       ~ See RCW 26.09.002 (“[T]he best interest of the child is ordinarily served when
the existing pattern of interaction between a parent and child is altered only to the extent
necessitated by the changed relationship of the parents.”).
        “See Homer, 

 n.9 (“Factors 1, 3, 6, and 8 [of RCW 26.09.520]
focus on the child’s interests. Factors 7, 9, and 10 focus on the family and its material
needs. Factors 2, 4, and 11 focus on special circumstances. Factor 5 considers the
reasons of the relocating and objecting parties.”).
        ~ RCW26.09.520(5); see Homer, 

 (noting that under the CRA
“the standard for relocation decisions is not only the best interests of the child” because
“the interests and circumstances of the relocating person” are “[p]articularly important”
as well).


                                           11
 No. 77407-7-1/12


“[t]he relative strength, nature, and stability of the child’s relationship with each

parent.” The legislature requires that this factor “be given the greatest weight.”46

Weighting the child’s relationships with his parents more than other factors provides

considerable protection to the child’s interest in stability. By contrast, the factors

listed in RCW 26.09.520 “are not weighted.” This significant distinction would be lost

if we allowed the parents to change by agreement the criteria for their son’s

residential schedule.

        Because of these concerns, we decline to accept the father’s argument that

some version of the CRA applies to his 50/50 parenting plan due to the customized

language agreed upon by the parties.

Ill. Law of the Case

       The father also argues the law of the case doctrine requires that the CRA

continue to apply to his parenting plan. He asserts, “When the trial court signed the

2016 parenting plan, it adopted all of the provisions therein, including the stipulation

to the application of the CRA.”47

       “The term ‘law of the case’ means different things in different

circumstances.”48 First, it refers to the effect of jury instructions in a trial.49 Second, it




       46   RCW 26.09.187(3)(a).
       ~ App. Br. at 30.
       48Lutheran Day Care v. Snohomish County, 

, 

(1992); 14A K. TEGLAND, WASHINGTON PRAcTIcE: CIVIL PROCEDURE § 35.55, at 589 (2nd
ed. 2009).
       ~ Lutheran Day Care, 

.



                                             12
No. 77407-7-1/13


refers to the binding effect of appellate determinations on remand.5° Third, it refers to

the principle that an appellate court will generally not reconsider the rules of law it

announced in a prior determination of the same case.51

        The father’s argument does not fit within the law of the case doctrine. The

approval of the 2016 parenting plan was not a legal ruling on whether the CRA

applies to a 50/50 parenting plan.

IV. Attorney Fees on Arpeal
       The mother requests attorney fees pursuant to RAP 18.1 and ROW 26.09.140.

RAP 18.1(c) requires that a party requesting statutory fees submit a financial affidavit

‘no later than 10 days prior to the date.   .   .   set for oral argument” where applicable

law mandates consideration of a party’s financial resources. ROW 26.09.140

authorizes awards of attorney fees “considering the financial resources of both

parties.” The mother failed to submit a financial affidavit. We decline to award

attorney fees.

V. Motion to File Surplemental Assignments of Error

       The father moves to file supplemental assignments of error in his reply brief,

and the mother moves to strike his reply as a nonconforming brief in violation of RAP

10.3(c).

       The father filed his appellant’s brief on April 9, 2018, and the mother filed her

respondent’s brief on June 14. Two weeks later, Division III of this court published In



       50   

       51   

                                                13
No. 77407-7-1/14


re the Marriacie of Jackson.52 Jackson states that courts considering a relocation

petition should determine where the child has actually been residing, regardless of

the parenting plan’s designations, before deciding whether to address the merits of

the relocation petition.53 He argues Jackson represents a change in the law and,

relying on Jackson, the father moves to add the supplemental assignments of error

contained in the reply brief he simultaneously filed. The mother moves to strike the

reply brief and seeks sanctions against the father for filing a nonconforming brief.

       A reply brief must be “limited to a response to the issues in the brief to which

the reply brief is directed.”54 Generally, a court will not review an issue raised and

argued for the first time in a reply brief.55 But appellate courts have discretion to

consider a case on its merits, despite technical flaws.56 RAP 1 .2 allows a court to

waive the rules “to serve the ends of justice,” and courts should “liberally interpret[   1”
the rules “to promote justice and facilitate the decision of cases on the merits.”57

Accordingly, a court should exercise its discretion to reach an appeal’s merits unless

there are compelling reasons not to do so, such as prejudice to the respondent.58




      524Wn. App. 2d 212, 220, 

 (2018).
      ~ 

      ~ RAP 10.3(c).
      ~ Matter of Rhem, 

, 327, 

 (2017); RAP 10.3(c).
      56   State v. Olson, 

, 

 (1995) (citing RAP 1.2(a)).
      ~ RAP 1.2(a), (c).
      58   Olson, 

                                           14
 No. 77407-7-1/15


        We deny the father’s motion because the mother would be prejudiced by

 considering his proposed supplemental assignments of error in his reply brief.59 The

father predicated his initial arguments on the parties sharing a 50/50 parenting plan,6°

and the respondent’s brief does the same. Now he seeks to add a completely

different argument. The father contends that Jackson addresses new legal issues,

but the same issues decided in Jackson were considered in a 2011 case cited in the

appellant’s brief, In re Marriage of Fahey.61 The father could have raised these

issues in his opening brief, but he chose not to.62

       We deny the motion to file supplemental assignments of error. We decline to

consider the portions of the reply brief addressing the proposed supplemental

assignments of error, so there is no need to formally strike the father’s reply brief.

We decline to sanction the father for filing a nonconforming reply brief in these

circumstances.

        ~ RAP 10.1(b); In re Dependency of O.J., 

, 693 ni, 

 (1997) (“It would be unfair, however, to allow the appellant to use those delinquent
 assignments of error to raise any new issues not addressed in its opening brief because
the respondent has had no opportunity to reply to them.”).
        60 See, e.g., App. Br. at 1 (“This appeal asks whether the court has authority to
proceed under the Child Relocation Act (CRA) when the parties have an agreed 50-50
parenting plan that specifically incorporates and customizes portions of the CRA
stipulating that either parent may seek to relocate with child.”).
        

, 55, 

 (2011) (“[The father] argues that because,
as a matter of fact, [his children] resided with him a majority of the time since 2006, [the
mother] cannot invoke the relocation statutes and is not entitled to the rebuttable
presumption favoring her relocation decision.”).
       62 The father was clearly aware of this theory, as revealed in his motion for
reconsideration in the trial court: “[The mother’s] frequent travel for work results in
many missed residential days, which could and may have forfeited the 50-50 status of
the parenting plan. .   . If the parenting plan was not 50-50, Worthley would not apply.
                            .


Thus, the CRA would apply.” CP at 290.


                                           15
No. 77407-7-1/16


      For the foregoing reasons, we affirm.




WE CONCUR:




/IAJ\.       (‘2/.                            /44




                                        16