### FILED 

## COURT OF APPEALS DIVISION II 2014 AUG - 5 

### AM IQ. 40 

### STATE OF WASHINGTON IN THE COURT OF APPEALS OF THE STATE OF 4 • b 

# e *. ON

In re the Marriage of TODD R. BROOKS,

v. ZEECHA L. BROOKS, DIVISION II

Appellant,

Respondent. No. 44692 - 8 -II

UNPUBLISHED OPINION
HUNT, P.J. — Todd R. Brooks appeals the trial court's order modifying a parenting plan. 

### He argues that the trial court erred in modifying the parenting plan after a relocation proceeding 

### because there was no finding or evidence at trial that his former wife's relocation required the 

### modification. Holding thatthe trial court did not abuse its discretion in modifying the parenting plan, we affirm. FACTS I. PARENTING PLANS 

### A. Original October 2010 Parenting Plan,Washington Todd and Zeecha Brooks1 dissolved their marriage on October 22, 2010. 

### They entered into an agreed parenting plan for their minor son. This original plan provided that their son 

### would reside with Todd on alternating weekends, from Friday evening to Sunday evening, and

1 We use the first names ofthe parties for clarity. We intend no disrespect.No. 44692 - 8 -II 

### everyWednesday overnight,year - round. In additionto thisyear - round visitation schedule,Todd had two, nonconsecutive weeks of extended time with their son 

### during the summer. At the time 

### the original parenting plan was entered, both parties resided in Cowlitz County, Washington: Todd, in Toutle, and Zeecha, in Kelso. Theirson attended elementary school in Kelso.

B. Mother's Relocation to Portland; Modified December 2010 Parenting Plan On November 3, 2010, Zeecha filed notice of her intent to relocate their son from Kelso, Washington, to Portland, Oregon. On December 15, the superior court entered an agreed order modifying the parenting plan (2010 Modified 

### Parenting Plan). 

### This modified parenting plan (1) explicitly contemplated their son' s attendance at Portland Public Schools; ( 2) continued Todd' s 

### year - round residential time with their son on alternating weekends, from Friday evening to Sunday evening, but eliminated the 

### Wednesday overnight time; (3) provided Todd the option of visiting their son in Portland one 

### evening per week (

### Monday-Friday)2; ( 4) provided Todd four
additional weekends "3 

### peryear and three Portland Public School in-service / planning days with their son; and ( 5) increased Todd' s additional residential summer time with their son from two 

### weeks to approximately 30 days.

C. Mother's Relocationto Kalama,WA;Temporary 2012 Parenting Plan 

### On May 21, 2012, Zeecha filed notice of her intent to relocate their son from Portland, Oregon, to Kalama, Washington; she also filed a proposed modified parenting plan. Zeecha 

### planned to remarry and wanted to move in with her future husband, who owned a home in Kalama. Zeecha's relocation to Kalamawould bring her son backto Cowlitz County and closer to Todd. 

### 2 This provision was intended to provide Todd with optional time to assist his son with homework or to participate in his mid - week activities. 

### 3 Clerk's Papers (CP) at 30. 2No. 44692 - 8 -II On June 13, Todd filed an objection to Zeecha' s and their son' s relocation. He also filed 

### a proposed modified parenting plan,which he stated should apply in the event thatthe trial court allowed modification of the existing parenting plan. 

### At a hearing on August 24, the trial court permitted the relocation. 

### The trial court held a hearing for a temporary parenting plan on 

### September 14 and entered atemporary parenting plan on November 9. II. PROCEDURE 

### Trial; 2013 Modified Parenting Plan A trial was scheduled for December 10, 2012. 

### By the time of trial, Todd no longer
contested Zeecha' s relocation and contested only her proposed modified parenting plan. Todd 

### and Zeecha agreed that that they would have the trial court determine only the following
modified parenting plan provisions: ( 1) Todd' s additional weekends with their son, (2) Todd' s 

### Wednesday visits with their son 

### during the summer, and ( 3) their son' s summer residential
schedule. 

### Before trial, Todd filed a memorandum of law stating that the case presented a novel set 

### offacts forthetrial court to consider and arguing thatZeecha's relocation closerto Todd should not allow her to reduce Todd' s residential time with their son significantly without a showing of necessity. 

### At trial, Todd contested Zeecha's proposed modified parenting plan, arguing that (1) it included a 30 percent reduction in his residential time with their son; ( 2) Zeecha was attempting to use her relocation as " carte blanche to 

### modify a 

### Parenting Plan," because "[ i]t' s

one of the only times where you don' t have to bridge that hurdle of Adequate Cause "; and ( 3)
she " would never pass that hurdle but for her relocation." Verbatim Report of Proceedings

3No. 44692 -8 -II

VRP) at 6. 

### Todd asked the trial courtto maintain the 2010 Modified Parenting Plan, except for increasing his " additional weekends "4 from four to eight per year. 5 The trial court addressed Todd's legal memorandum and his contention that Zeecha' s 

### relocation closer to Todd should not allow her to reduce Todd's residential time significantly without a showing of necessity:

Well, as I stated before, this case really is a case, I think, of first impression. This is a case that has been brought before the Court because of a 

### relocation that has been granted on a temporary basis, which now has been acquiesced, but it' s a relocation, 

### frankly, closer to the parties—brings the parties 

### closer, instead ofmaking them furtherapart.

In their relate —

### in the relocation setting, what the Court normally does is 

### look at the existing Parenting Plan and determine what provisions in that Plan need to be altered, deleted, changed because ofthe reality ofthe distance resulting from the relocation, and what provisions no longer,just simply, are practical; or, 

### frankly,become illogical. Andthat'swhat I intendto do inthis case. T]he basic premises is the Court leaves in place those provisions that are in 

### existence and are not affected bythe relocation; and,the Courtdoesn'twantto be involved in changing provision[ s in] a 

### Parenting Plan if it' s not necessary. The purpose of a 

### Parenting Plan is stability — 

### stability for the childthe child is .. . who we' re talking about. VRPat51 -

53. 

### The trial court orally ruled that,consistentwith the 2010 Modified Parenting Plan andthe November 9, 2012 temporary parenting plan, Todd would continue to have year - round 

### residential time with their son on alternating weekends from Friday evening to Sunday evening, four " additional weekends" per year, and an additional 30 days 

### during the summer. Clerk' s 

### 4 VRP at10. 

## 5Todd presentedthefollowing argumentin supportofthis modification request: The child' s school schedules from the Portland School District he was in, to the current schedule under the Kalama District, results in some other losses oftime. 

### There were initially a lot ofin-service days inthe Portland Districtthatthe father was given, now he doesn't have those; so, he' s asking for, essentially, some period oftime, andthat equals fourweekends to make up forthat. VRP at 10 -11.
4No. 44692 - 8 -II Papers ( CP) at 169. 

### The trial court modified the 2010 Modified Parenting Plan by striking the provision about the Portland Public School in-service days because it was " no longer even at 

### issue" and by grantingTodd Wednesday residential time from 5:30 p.m.to 8:00 p.m.during only the school year. VRP at 55. 

### The trial court explained that it did not grant Wednesday residential time during the 

### summer because, ratherthan giving Todd two weeks during the summer, as Zeecha proposed, it
gave Todd 30 days of residential time 

### during the summer. The trial court stated: "[ I]n addition 

### to that, to have a Wednesday visit is simply too disruptive to what's left ofthe Summer that
would be with [ Zeecha] "; and " 

### in fact, the Parenting Plan that we're looking at modifying doesn't specifically say he has them." VRP at 57 - 58. Todd disagreed with the trial court' s 

### finding that the 2010 Modified Parenting Plan did not provide for Wednesday residential time during the summer. 

### Todd argued that he had been granted Wednesday residential time during the summer under paragraph 3. 13 ofthe 2010 Modified Parenting Plan, which provided Todd 

### with the option ofvisiting their son one evening per week (Monday through Friday) to interact with him 

### by helping with homework or participating in mid - week activities. The trial court did not find this argument persuasive. 

### On January 28, 2013, the trial court entered amodified parenting plan, consistentwith its oral rulings set forth above. Todd appeals. ANALYSIS 

### Todd contends that the trial court erred in modifying the parenting plan after the 

### relocation proceeding because there was no evidence at trial ortrial court finding that Zeecha's relocation required the modification. He argues that when a relocation does not create a
substantial change in circumstances, the trial court cannot modify the parenting plan.No. 44692 -8 -II



### Disagreeing, we hold that Todd's argument contradicts the express statutory language ofRCW 26.09.260(6) andthatthe trial court did not abuse its discretion in modifying the parenting plan. I. STANDARD OF REVIEW RCW 26.09.260 governs modifications of parenting plans. Subsection (6) provides that the superior court may order adjustments to the residential portions ofa parenting plan "pursuant to a proceeding to permit or restrain a relocation of the child." RCW 26.09.260(6). We review a trial court' s rulings on a parenting plan for abuse of discretion. 

### In re Marriage ofChristel, 101 Wn. 

### App. 13, 20 - 21, 1 P.3d 600 ( 2000) (

### citing In re Marriage ofWicklund, 84 Wn. App. 763, 770, 932 P.2d 652 ( 1996)). 

### We do,not reverse atrial court's decision to modify aparenting plan under RCW 26.09.260 unless the trial court exercised its discretion in an untenable or manifestly
unreasonable way. In re Marriage ofMcDole, 122 Wn.2d 604, 610, 859 P.2d 1239 ( 1993). We do not review credibility determinations or weigh evidence on appeal. 

### In re Marriage of 

### Meredith, 148 Wn.App. 887, 891 n.1, 201 P.3d 1056, review denied, 167 Wn.2d 1002 (2009).

II. 2013 MODIFIED PARENTING PLAN IN RESPONSE TO REQUESTED RELOCATION 

### Todd argues that the trial court erred in modifying the parenting plan because there was no " substantial change" in circumstances, as required 

### by RCW 26.09.260( 1). Br. ofAppellant at 11. 

### Todd is correct that for most modifications, RCW 26.09.260(1) generally requires a finding that a substantial change has occurred or that modification is in the best interests ofthe child. 

### But Todd ignores RCW 26.09.440, which does not require a showing of substantial change in circumstances or that modification is in the best interests of the child whose relocation is intended. Rather, this statute automatically allows relocation of a child and confirmation of a related proposed residential schedule unless the other parent moves to block the relocation or

6No. 44692 -8 -II

opposes the proposed schedule within 30 days of receiving the relocation notice.

### 6 Consistent with RCW 26.09.440, RCW 26.09.260(6) expressly does not require a hearing to determine adequate cause in order to modify a parenting plan in response to a relocation request.? Todd' s arguments fail.8

6 RCW 26.09.440(2)( a) provides, in pertinent part:

THE RELOCATION OF THE CHILD WILL BE PERMITTED AND THE PROPOSED REVISED RESIDENTIAL SCHEDULE MAY BE CONFIRMED UNLESS, WITHIN THIRTY DAYS, YOU FILE A PETITION AND MOTION WITH THE COURT TO BLOCK THE RELOCATION OR OBJECT TO THE PROPOSED REVISED RESIDENTIAL SCHEDULE AND SERVE THE PETITION AND MOTION ON THE PERSON PROPOSING RELOCATION AND ALL OTHER PERSONS ENTITLED BY COURT ORDER TO RESIDENTIAL TIME OR VISITATION WITH THE CHILD." 

### 7 RCW 26.09.260(6) provides: The court may order adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child. The person objecting to the relocation ofthe child orthe relocating person' s proposed 

### revised residential schedule may file a petition to modify the parenting plan .. . 

### without a showing ofadequate cause otherthan the proposed relocation itself. A 

### hearing to determine adequate cause for modification shall not be required so long as the request for relocation of the child is 

### being pursued. 

### In making a determination of a modification pursuant to relocation ofthe child, the court shall first determine whether to permit or restrain the relocation ofthe child using the procedures and standards provided in RCW 26.09.405 through 26.09.560. 

### Following that determination, the court shall determine what modification 

### pursuant to relocation should be made, if any, to the parenting plan or custody order orvisitation order. Emphasis added.) Under H.B. 2197, 63d 

### Leg., 

### Reg. Sess. ( Wash. 2014), changes to the language of RCW 26.09.260(6) have been proposed to require an " adequate cause" standard in relocation proceedings under RCW 26.09.260(6). 

### See also SUBSTITUTE H.B. 2197, 63d Leg., Reg. Sess. ( Wash. 2014). 

### Butthese changes have not yet been adopted. More importantly,they were not in effect atthe time ofthe modification at issue here. 

## 8 Todd also cites cases holding that courts should view custodial changes as highly disruptive and that there is a strong presumption against modification. The modification at issue here, however, did not involve a custodial change; thus, this argument lacks merit.
7No. 44692 - 8 -II A. " Adequate Cause," " Substantial Change in Circumstances," " Nexus" Not Required Todd correctly concedes that "[ t]he statute waives the issue of adequate cause if a relocation is pursued." Br. of Appellant at 11. Nevertheless, he argues that ( 1) the " analysis does not and should not end there "; and ( 2) because "[ 

### t]he court may make modifications pursuant to the relocation," "[ 

### t]he statute places a significant burden on the parent requesting the 

### change to show that that some practical change to the current parenting plan is necessitated by the relocation of the child." Id. ( citing RCW 26.09.260(6)). In support ofthis contention, Todd
cites only RCW 26.09.260(6). 

### But,contraryto his argument, RCW26.09.260(6) neither requires a showing ofadequate cause norplaces a significant burden on the parent requesting the change to showthatthe relocation necessitates modifying the parenting plan. 

### Todd also relies on In re Marriage ofHoseth to support his contention thatthe trial court was required to find a substantial change in circumstances before modifying the parenting plan here. In re Marriage ofHoseth, 115 Wn. 

### App. 563, 63 P.3d 164 ( 2003). But his reliance on 

### Hoseth is misplaced because Hoseth involved a minor modification of a parenting plan under RCW 26.09.260(5), which requires " a substantial change of circumstances grounded upon facts 

### occurring since entry ofthe prior decree or plan or were unknown to the superior court at the time it entered that prior decree or plan." Hoseth, 115 Wn. 

### App. at 570 ( 

### citing RCW 26.09.260( 1)). Unlike the minor residential time modification at issue in Hoseth under subsection ( 5) of RCW 26.09.260, the modification at issue here occurred in connection with a
relocation proceeding under subsection ( 6), 

### which does not require a showing of a substantial change in circumstances. RCW 26.09.260.

8No. 44692 - 8 -II 

### Acknowledging that RCW26.09.260(6) governs this modification,Todd contends that 1) the statute' s "` pursuant to relocation "'

### 9 language10 creates a requirementthatthe modification be related to the relocation; ( 

### 2) Zeecha's proposed modified parenting plan represented her
unabashed desire to reduce [ his parenting] time "11 and was not ' pursuant to "' the relocation; 3) when a parenting plan is modified, there must be a " nexus" between the parties' practical 

### circumstances and the changes to the parenting plan; and (4) Zeecha's requested modifications lacked this " nexus." 

### Reply Br. ofAppellant at 8. Todd relies on Zeecha's proposed modified parenting plan and her requested changes to support his argument that the modification lacked a sufficient " nexus. "12 Todd' s argument lacks
merit. RCW 26.09.260(6) expressly provides that "[ 

## t]he court may order adjustments to the residential aspects of a parenting planpursuant to aproceeding to permit or restrain a relocation ofthe child." ( Emphasis added). This statute does not require thatthe modification be related to

or have a " nexus" with the requested relocation, 13 and Todd provides no authority to support this
contention.

9 

### Br. ofAppellant at 11 ( quoting RCW26.09.260(6)). 

### 10 Pertinent portions ofRCW 26.09.260(6) provide: In making adetermination ofa modificationpursuant to relocation ofthe child, . . 

### Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order. Emphasis added.) 11 Br. ofAppellant at 13. 

### 12 We note, however,thatthetrial courtdid notadoptZeecha's proposed parenting plan. 13 But even if the statute required such a " nexus," 

### the trial court explicitly considered Zeecha's requested relocation in modifying the parenting plan.
9No. 44692 -841 B. Changes in Todd' s Residential Time Although Todd argues that the trial court should not have modified the 2010 Modified 

### Parenting Plan, his own filings and requests at trial contradict this position. The record shows 

### that Todd filed his own proposed parenting plan, which deviated from the 2010 Modified 

### Parenting Plan, and that he asked the trial court to modify the 2010 Modified Parenting Plan to provide four more " additional weekends" to make up for his lost Portland Public School District In-Service days. VRP at 10. Todd' s focus appears to be on the alleged reduction in his residential time with his son resulting from the modified parenting plan: 

### He argues that the trial court erred in eliminating four of his " additional weekend" visits and his mid - week visits because the,relocation did not
necessitate a reduction in his residential time. 

### But contrary to Todd' s assertion, the trial court did not eliminate four ofhis " additional weekend" visits; rather, the trial court denied his request to grant him four more " additional weekends." VRP at 10 ( emphasis added). Instead of 

### increasing to a total of eight " additional weekends," the trial court ruled that, consistent with the 2010 Modified 

### Parenting Plan, Todd would continue to have four " additional weekends" per
year. 

### Todd may have lost some school in-service days with his son as a result ofthe relocation
and the change in school district. But it was not unreasonable for the trial court to decline to provide extra weekends as " make up "14 days; and, in the modification, the trial court was not required to grant Todd the same number of residential days as he had previously enjoyed. We hold that Todd fails to show that the trial court abused its discretion when it struck the Portland



### 14VRP at11. 10No. 44692 - 8 -II 

### Public School in-service residential provision of the parenting plan and maintained the 2010 Modified Parenting Plan "additional weekend" provision. 

### Todd also contends the trial court erred in eliminating his mid - week residential time 

### duringthe summer. Asthetrial courtnoted,the 2010 Modified Parenting Plan did not explicitly provide 

### Wednesday mid - week residential time. 

### Rather, the 2010 Modified Parenting plan contained a provision granting Todd an optional weekly visit, which provision was expressly 

### intended to give Todd the opportunity to assist the son with homework or other mid - week
activities. Based on this provision's stated intent, it was not unreasonable for the trial court to 

### limit these midweek visits to the school year, particularly in light of its finding that these visits would be disruptive to the limited days that Zeecha had with their son during the summer. Again,we hold that Todd fails to showthatthetrial court abused its discretion in limiting Todd' s Wednesdayvisitations to the school year.



### C. Todd's PolicyArgumentto Create New Statutory Requirement Todd asserts that this is a case of first impression and expresses his concern that 

### parenting plan modifications that result from relocations should accommodate the relocation and
not create a " free for all" for the parties to modify parenting plans. 

### Reply Br. ofAppellant at 5. He contends that ( 1) if we accept the argument that RCW 26.09.260(6) does not require a showing of adequate cause or substantial change in circumstances, " a move across the street 

### would open the door to a major modification ofthe parenting plan without any other basis for doing so " 15; ( 2) relocations should not automatically give rise to a modification of a parenting plan; and (3) we should hold that there must be a reasonable nexus between the relocation and a

15 

### Reply Br. ofAppellant at 5 -6. 11No. 44692 -8 -II

modification of the parenting plan. We decline Todd' s request to read a new requirement into 

### relocation proceedings thatthe legislature has already prescribed. 

### RCW26.09.260(6) provides that, after determining whetherto grant a relocation,the trial court shall determine what modification "pursuant to relocation" should be made, ifany, to the parenting plan or custody order or visitation order. 

### RCW 26.09.260(6) does not automatically 

### require modifications ofparenting plans after relocation; instead, the legislature has vested the trial courts with discretion to determine whether such a modification is appropriate.

Here, the trial court exercised its discretion under RCW 26.09.260(6), 

### as contemplated by the legislature. 

### The trial court considered whether to modify the parenting plan after Zeecha's relocation with their son: 

### I]n the relocation setting,what the Court normally does is look atthe existing Parenting Plan and determine what provisions in that Plan need to be altered, deleted, changed 

### because ofthe reality ofthe distance resulting from the relocation, and what provisions no longer, just simply, are practical; or, 

### frankly, become illogical. And that' s what I intend to do in this case. VRP at 52. 

### Again, Todd fails to showthat the trial court abused its discretion in modifying the 

### parenting plan in response to the relocation. III. ATTORNEY FEES RAP 18. 1 authorizes attorney fees on appeal if provided 

### by applicable law. After 

### considering the financial resources ofboth parties, we have discretion to award attorney fees to the prevailing party. RCW26.09.140. To receive attorneyfees underRCW26.09.140, however, the requesting party must show his need. 

### In re Marriage ofKonzen, 103 Wn.2d 470, 478, 693 P.2d 97 ( 1985). 

### A party relying on a financial need theory for recovery of attorney fees must submit an affidavit of need " no later than 10 days prior to the date the case is set for oral argument or consideration on the merits." RAP 18. 1( c). •

12No. 44692 -8 -I1



### Todd requests attorney fees on appeal, relying on RCW 26.09. 140, a financial need theory. But he has failed to provide an affidavit of need, as required 

### by RAP 18. 1( c). Hoseth, 115 Wn.

### App. at 575. 

### Thus, we deny his request forattorneyfees on appeal. RAP 18.1( c). Zeecha asserts that she is entitled to attorney fees on appeal under RAP 18.9 because Todd filed a frivolous appeal. We disagree that Todd' s appeal was frivolous. The trial court
stated that " this [ was] a case ... of first impression," expressing concern that there was no guidance for the court on the particular facts ofthis case. VRP at 51 -52. " An appeal is frivolous 

### if,considering the entire record, the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ and that it is so devoid ofmerit that there is no possibility of reversal." 

### Lutz Tile, Inc. v. Kreck, 136 Wn.App. 899, 906, 151 P.3d 219 (2007), review denied, 162 Wn.2d 1009 ( 2008). Further, all doubts as to whether an appeal is frivolous 

### are resolved in favor ofthe appellant. Id. The trial court's comments may have given Todd the impression that modifications related to relocations that bring the parties geographically closer 

### present adebatable issue. Accordingly,we holdthatTodd's appeal is notfrivolous, andwe deny

13No. 44692 - 8 -II 

### Zeecha's requestforattorneyfees on appeal onthis basis.

We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
Maxa, J.
Lee, J.

14