### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Parentage of No. 79059-5-I D.L. and J.L. DIVISION ONE ERIK NILSEN, UNPUBLISHED OPINION

Respondent, and LEANNE LOWE, Appellant. FILED: January 6, 2020 APPELWICK, C.J.

— Lowe appeals a modification to a parenting plan fortwin sons, J.L. and D.L. She alleges thatthere was not adequate grounds forthe trial courtto proceed with Nilsen’s modification request aftershewithdrew her request to relocate the boys. She also argues that the trial court impermissibly relied on facts known to the court prior to the most recently adjudicated parenting plan to find adequate causeto modifythe parenting plan. And, she argues thattherewas insufficient evidence of a substantial change in circumstances after the most recentlyadjudicated parenting plan to support modification. We affirm. FACTS Leanne Lowe and Erik Nilsen are the parents of twin boys, J.L. and D.L. The boyswere born on March 2, 2010. They have strong and stable relationships with both parents. Nilsen first sought a parenting plan regarding the children inNo. 79059-5-1/2

2011. While the parentage action was pending, Lowe moved with the boys to Californiawithouta courtorder. She rented out herWashington home and entered
a one year lease in California. The court ordered Lowe to return the boys to Washington. Lowethen soughta negotiated planwith Nilsen. The parents agreed
on a parenting plan on February 8, 2012. Under the plan, D.L. would reside a majorityofthetimewith Nilsen in Washington while J.L. would reside a majorityof the time with Lowe in California. The plan called for the boys to be reunited in Washington by September2, 2014. One child would remain with each parent in the PugetSound area. If Lowedidn’t return tothe PugetSound area, both children would reside a majority ofthe time with the Nilsen. Lowe returned to Washington in between the summer and fall of 2014. Nilsen then petitioned to modify the parenting plan. Lisa Barton completed a guardian ad litem (GAL) report on behalf of both children on August 12, 2015. Barton recommended that the children have close to equal residential time with each parent. But, she recommended slightly more time with Lowe in order to facilitate going to school with their half-sister, Lowe’s daughter. She also recommended that the statutory presumption in favor of relocation under RCW 26.09.520 should not apply in this case. On December 23, 2015, the trial court adopted these recommendations in a new parenting plan. The parties subsequently modified the plan by agreement to correct a minor error. The updated plan was filed on February 8, 2016. About a year later, in early February 2017, Lowe informed Nilsen that she had a potential job offer in Florida. She told Nilsen that she would take the offer
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and relocate to Florida unless Nilsen agreed to modifythe parenting plan. Lowe told Nilsen that “as the primary custodial parent, [she] would have a very strong argument in courtfor relocation.” She said that if Nilsen did not agree to her plan he “[would] befacing BOTH an appeals case and a relocation case.” But, if Nilsen approved her updated parenting plan, she would reject her Florida job offer. However, she refused to rule out further relocation, saying only that the reasons for future location would need to be “more imperative,” such as her getting remarried to a man in another state. Nilsen agreed to Lowe’s demands. Lowe latertold the GAL that she “was willing to agree to not move to Florida” because shewasn’t really considering it anyway. One month later, in March 2017, Lowe filed a notice of intentto relocate to California. Lowe stated that her employer had mandated this move. She further stated thatshe neededto move because shewas getting married to a man named Robert Burge, who lived in southern California. Lowe also stated that the move was necessary because herdaughter had a skin condition that required herto be in a warmer climate. In her declaration in support of her request, she underlined thatthe law includes a presumption that children be allowed to move pursuantto RCW 26.09.520. She did not include that her existing parenting plan specifically removed the relocation presumption in this case. Nilsen objected tothe relocation. He proposed that if Lowe were to move, the parenting plan should be modified so thatthe children live with him the majority ofthe time. Barton was again appointed as the GALforthe children to address issues related to relocation and development ofa parenting plan. She issued her report
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on June 29, 2017. Barton reported that Lowe’s marriage to Burge “does appear to be an afterthought in an effort to gain traction forthe relocation action.” Burge reported to Barton thatthattheir relationship had “changed” in early March, when Lowe gave her the notice to relocate. Barton also noted that itwas “interesting” that Lowe did not mention marrying until Nilsen raised the issue when the parties
were discussing relocation. And, Barton learned from Lowe’s employerthatthey considered her move to California to be for “personal reasons” ratherthan ajob requirement as Lowe had claimed. She said that Lowe had provided no evidence regarding her daughter’s medical condition requiring her to move to California. Barton also reported that Lowe told herthatshe had discussed the potential move with the children. Barton recommended that the relocation be denied. She also recommended thatthe children should reside primarilywith Nilsen. On August 1, 2017, about a month after Barton issued her report, Lowewithdrew her requestto relocate and moved to dismiss Nilsen’s modification action. Nilsen objected and asked the court to allow his modification action to proceed. The trial courtfound that Lowe had acted in bad faith throughout the relocation action. It also found that herwithdrawal ofthe relocation noticewas disingenuous and submitted in bad faith. The court ordered Lowe to pay $9,811.88 in attorneyfees to Nilsen. It also denied her motion to dismiss Nilsen’s modification action, but instructed Nilsen to file a separate motion for adequate cause to modifythe plan. On October 12, 2017, Nilsen filed a petition to modify the parenting plan. He proposed that the boys reside with him 15 out of 28 days, and with Lowe 13
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out of28 days. The court found adequate cause fora hearing to modifythe plan based on Lowe’s constantthreats ofrelocation creating a detrimenttothe children. Lowe filed a notice ofdiscretionary review ofthe adequate cause determination to this court on February 12, 2018. This court denied review. Aftera trial, the court approved Nilsen’s proposed changes to the parenting plan. Lowe appeals. DISCUSSION Lowe raises three issues on appeal. First, she argues that there was not adequate cause forthe trial courtto allow Nilsen’s modification action to proceed
once she withdrew her relocation petition. Next, she contends thatthe trial court impermissibly relied on facts known to the court priorto the most recent parenting plan in determining that a substantial change in circumstances warranted modification ofthe plan. Last, she argues thatthere was insufficient evidence of
a change ofcircumstancesto support a modification. Atrial court may not modifya parenting plan unless itfinds, upon the basis offactsthat have arisen sincethe priordecree orplan orthatwere unknown tothe trial court at the time of the prior decree or plan, that a substantial change in circumstances has occurred. RCW26.09.260(1). A partyseeking modification of
a parenting plan must submit an affidavit setting forth facts supporting the requested modification. RCW 26.09.270. The opposing party mayfile opposing affidavits. ROW 26.09.270. The trial court must then determine ifthe affidavits establish adequate cause to hear the motion. ROW 26.09.270. If it determines thatthe affidavits establish adequate cause, it shall hold a hearing on an orderto
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show cause whythe request should not be granted. RCW 26.09.270. However,
a person objecting to relocation ofa child may petition to modifythe parenting plan without a showing of adequate cause other than the proposed relocation itself. RCW 26.09.260(6). This court reviews a superior court’s determination of adequate cause for abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d 664 (2003). I. Withdrawal of Relocation Petition Lowe arguesthatthetrial courterred in allowing Nilsen’s modification action to proceed aftershe withdrew her relocation petition. She contends thatthefacts here are comparable to In re Marriage of Grigsby, 112 Wn. App. 1, 57 P.3d 1166 (2002).In Grigsby, a motherand father had joint custody oftwo sons. Id. at4. By agreement ofthe parties, the boys lived with the mothera majority ofthe time. k~. Afterthe parties had both moved to Washington, the mother petitioned the court to relocatewith the boys, and the father objected and sought a modification ofthe parenting plan due to the proposed relocation. ki. at 5. After a hearing, the trial court ruled against relocation, but did not immediately rule on the parenting plan modification. at 6. The mother immediately declared her intent to remain in Washington to the court. j~, Nevertheless, the trial court held another hearing on the parenting plan modification roughlytwo months later. j4~ Itjustified holding another hearing by voicing concern about potential future proposed relocations, stating it wanted to “retain the status quo as much as possible.” ki. at 15. Thetrial courtsubsequently
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modified the parenting plan to give the father a slight majority of residential time. kI. at 6. This court overturned the modification, holding that once the mother indicated that she would not relocate, the relocation could not serve as the basis fora modification ofthe parenting plan. Seeki at 17. The facts here differ in two significant ways. First, unlike the mother in Grigsby, Lowewasfound to havewithdrawn her relocation petition in bad faith. ki. The court in Grigsby specifically declined to reach the question ofwhether a trial courtwould have authorityto modifythe parenting plan in that instance. Id. Second, the trial court here did not rely solely on the relocation petition as the basis for modifying the parenting plan. Rather, it required Nilsen to show adequate cause on his own modification petition after the petition for relocation had been withdrawn. Nilsen complied by submitting an affidavit as required by ROW 26.09.270. This course of action is expressly recognized in Grigsby. 112 Wn. App. at 17 (‘Grigsby is, of course, free to seek modification ofthe parenting plan should he be able to establish that there has been a substantial change in circumstances ofthe children.”). Thetrial courtdid noterrin allowing Nilsen to pursue a modification request upon the necessarythreshold showing afterwithdrawal ofthe relocation petition. II. Facts Known Priorto the Most Recent Parenting Plan Lowe argues nextthattrial court impermissibly relied on facts known to the court prior to the adjudication of the December 2015 parenting plan when it modified the 2016 parenting plan. ROW 26.09.260 provides that a court should modifya parenting plan only ifitfinds a substantial change in circumstances “upon
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the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time ofthe prior decree or plan.’ Facts that are not anticipated bythe courtatthetime ofthe priordecree are considered unknown for the purposes of showing a basis to modify the parenting plan. In re Marriage of Parker, 135Wn. App. 465, 471, 145 P.3d 383 (2006). A material change can also be deemed to occur where a provision of the original decree anticipates cooperation and that cooperation is not forthcoming. Selivanoffv. Selivanoff, 12 Wn. App. 263, 265, 529 P.2d 486 (1974). Here, the parties’ most recentlyadjudicated plan was entered on December 28, 2015.1 However, the trial court in the modification made extensive findings of fact concerning events that occurred prior to the previous plan. Lowe contends this was error. Thatthetrial court provided a recitation ofthefamily’s history in its findings does not by itself indicate a violation of ROW26.09.260. The statute calls forthe court to determine whether a “substantial change” has occurred. ROW 26.09.260(1). Plainly, it would be impossible to determine whether any sort of change had occurredwithoutan understanding ofthestatus quo. So, tothe extent that the trial court included historical facts to provide context for a finding of a substantial change, itdid not err.

1 The parties agreed to modify this plan in February 2016 to correct a typographical error. Because the February2016 was uncontested, the court may look to facts priorto that plan. See In re Marriage ofTimmons, 94 Wn. 2d 594, 599-600, 617 P.2d 1032 (1980).
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Lowe, however, contends that the trial court did more than simply provide context. She argues thatthe trial court “based its modification almost entirely on facts that arose priorto the last contested parenting plan.” She points to the 18 findings of fact referencing events prior to December 2015, and the court’s reference to “long standing patterns” ofattempting to relocate. Lowe raised these concernstothetrial court in a motion forreconsideration. The trial court denied her motion, confirming that its “modification

. . . is based on facts and circumstances that have arisen since the entry of the 2016 parenting plan.” Thetrial courtfurtherexplained thatthe pre-2016 facts it included were “the historyofthisfamilyand the context bywhich all ofthefacts arising sincethe entry ofthe February2016 parenting plan is viewed.” Consideration ofthe historyofattempted relocation was also permissible to discern whethera “provision ofthe original decree anticipates cooperation and that cooperation is not forthcoming.” Selivanoff, 12 Wn. App. at 265. The previous parenting plan contained a provisionthata presumption infavorofrelocation would not apply to this case.2 The trial court here found that provision was “a clear attemptto address the ongoing disruption that repeated relocations have caused.” However, the courtfound the effortwas “unsuccessful and ignored bythe mother.” Consideration ofthe provision and its historywastherefore necessaryto determine whether Lowe’s lack ofcooperation constituted a substantial change.

2 The question of whether a trial court has authority to waive this presumption is not before us and we therefore decline to address it. 9No. 79059-5-1/10

The trial court’s use offacts known priorto the most recent parenting plan
was permissible. Ill. Sufficiency of Evidence ofSubstantial Change Last, Lowe contendsthatthetherewas insufficientevidence ofa change in circumstances after December 2015 to support a modification of the parenting plan. A trial court’s decision to modify a parenting plan is reviewed for abuse of discretion. See In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). This decision will not be reversed unless the courtexercised its discretion in an untenable or manifestly unreasonableway. j.4. Atrial court’sfindingswill be upheld ifthey are supported by substantial evidence. k~. The trial court determined that a change was necessary because Lowe’s repeated attemptsto relocate, and repeated involvementofthe children in parental conflicts, were adverse to the best interests ofthe children. Sincethe December2015 plan, Lowe hasthreatened relocation twice: first, to Florida and then, a month later, to California. She used her first request to relocate, a move she later stated she “was not considering” anyway, to get more residential timefrom Nilsen. She wasforced towithdraw hersecond requestafter the GAL uncovered inconsistencies in her proffered reasons forthe move. That requestcame onlyone month afterexacting concessions in exchangefordropping her previous requestto move to Florida. Lowe admitted to discussing the potential move to California with the children, in violation ofa prohibition in the parenting plan. She moved to California with her daughter, but without her sons, while a decision from the trial court was
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pending, making the boys all the more aware ofthe potential separation from their father. In attempting to relocate to California, Lowe also explicitly relied on the presumption in favorof relocation, by including and underlining the presumption in her request to court. She did not disclose thatthe trial court had provided in the existing parenting plan that the statutory presumption would not apply to these parents. She acted contraryto the plan and was not candid to the court. Lowe also involved the children in her attempts to interfere with Nilsen’s residential time. She did this by enrolling the children in a Taekwondo class that met on Tuesdays and Thursdays, even though Tuesday was Nilsen’s only residential weekday with the boys. She did this one year after having reduced Nilsen’s residential time through herthreatened move to Florida. She claims she had Nilsen’s permission to do so. But, the “permission”was that he had agreed to
a different martial arts class two years earlier. She claims that she “didn’t force him”totakethe children toTaekwondo during his residential time. But, she admits that the boys were aware that one of the classes was scheduled during his residential time, and thatthe boys had told Nilsen they had class during thattime. The boys had a goal ofworking towards a “black belt” in Taekwondo. The mother framed Nilsen’s choice by saying “if he chose to supporttheir goal, then thatwas up to him.” Thetrial courtcorrectlyconcluded thatthis placed Nilsen in a situation to eitherdisappointthe boys or lose his onlyweekdaytime with them. The facts support a conclusion of abusive use of conflict by Lowe and of involving the children in the conflict.

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Thetrial court had reason to believethat Lowewould continue herattempts at relocation. Just 17 days prior to trial, Lowe e-mailed her daughter’s father, indicating that all his visitswith theirdaughterafter September 1, 2018would take place “at [her] residence in Costa Mesa, California.” Thetrial courtthus found her trial testimony that she didn’t have a residence in Costa Mesa not credible. The court furtherfound that either Lowe did have a residence in Costa Mesa, or she
was misleading her daughter’s father. The court also found this exchange indicated either that the mother would deliberately schedule her daughter’s residentialtimewith herfatherin Costa Mesawthoutthe boys, thatshewould take the boys with her to Costa Mesa, or that she would be residing in Costa Mesa. Thetrial courtfound that Lowe provided no credible explanationforherstatements in the e-mail that she resided in California. Accordingly, thetrial court had sufficientevidence ofthe mother’s continued threats of relocation and involving the boys in parental conflict occurring afterthe prior orderto conclude that a substantial change of circumstances in the lives of the children had occurred. The court had additional reasons to believe this behavior would continue under the current residential schedule. Its reasons for exercising its discretion to modify the parenting plan are not manifestly unreasonable. The actual changes are not otherwise challenged. Lowe argues that there was no evidence the children were being harmed. In fact, she points to the trial court noting the children were doing exceptionally well. But, the best interest standard does not require thatthe court wait until the children aresodamaged thattheyexhibit measurable harm before protecting them
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from behaviors that pose a risk of harm. ~ In re Marriage of Frasier, 33 Wn. App. 445, 451, 655 P.2d 718 (1982) (“There is nothing in the language of [RCW 26.09.260] which compels a courtto wait until damage has actually occurred

. before taking corrective action in child custody cases.”). The evidence beforethe trial court amply suggested the behavior of Lowe posed a risk of harm to the children and was not in their best interest. The trial courtdid notabuse its discretion in finding a substantial change in circumstances and granting the modification. We affirm.


# L~4J*i WE CONCUR: 

# 1’ L~iJ4 

## V

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