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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of

BRITTANY FROMBACH,

Appellant,

and

DYLAN FROMBACH,

Respondent.

No. 71053-2-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: November 24, 2014

Leach, J. —Brittany Frombach appeals pro se from the entry of final

orders dissolving her marriage and providing for the care of her two daughters.

She contends that the court erred in admitting testimony at trial, placed undue

weight on certain evidence, and found, contrary to the evidence, that the father

had been the primary caretaker of the children before the parties separated.

Because Brittany fails to demonstrate any legal error or abuse of discretion in the

orders on review, we affirm.1

FACTS

Brittany Frombach (now Wagner) and Dylan Frombach married in 2002.

During their marriage, they had two daughters and lived in Federal Way. Brittany

filed a petition for dissolution in April 2012 following an argument that escalated

1 For clarity, we refer to the parties by their first names.
NO. 71053-2-1/2

into a physical confrontation and culminated in Brittany's arrest for simple

assault.2

The trial court entered temporary orders providing for equal residential

time with each parent. Shortly before trial, Brittany filed notice of intent to

relocate to Maple Valley. The parties' daughters were 10 and 8 years old at the

time of trial, and the children's residential schedule was the primary contested

issue. Dylan argued that the children should live with him in the family home in

Federal Way the majority of the time. Brittany, on the other hand, urged the court

to allow her to relocate and have the children reside primarily with her and her

mother in Maple Valley.

During the three-day trial in July 2013, the court heard the testimony of the

parties, various family members, friends, and acquaintances. A Family Court

Services social worker who conducted an evaluation testified about her

recommendations for a parenting plan. The court also considered the testimony

of Dylan's counselor and a psychotherapist who had several therapy sessions

with the parties' daughters.

The court entered a final parenting plan providing for the children to live

with Dylan in Federal Way the majority of the time. The court allowed Brittany to

2 Brittany was charged with fourth degree assault and exposing children to

domestic violence. The State agreed to dismiss the latter charge with prejudice,

and the assault charge was resolved by a stipulated order requiring Brittany to

comply with certain conditions.

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relocate, and the parenting plan allows for the children to reside with her

overnight every Thursday and, on alternate weeks, from Thursday afternoon until

Monday morning. The plan also allocates major decision-making authority to

Dylan, except with respect to religious issues. Brittany appeals.

ANALYSIS

We review a trial court's parenting plan for abuse of discretion.3 We defer

to the trial court because of its unique opportunity to observe the parties,

determine their credibility, and sort out conflicting evidence.4 A trial court abuses

its discretion if its decision is manifestly unreasonable or based on untenable

grounds or untenable reasons.5

Brittany claims that the trial court erred in admitting the testimony of Nancy

Paul, who testified about seven therapy sessions she conducted with the parties'

daughters in late 2012 and early 2013. But it does not appear that Brittany

objected or moved to exclude Paul's testimony at trial. Consequently, Brittany

has not preserved this claim of error for review.6

Moreover, Brittany has not identified any valid legal basis to exclude

Paul's testimony. She asserts that Paul was biased in favor of Dylan and claims

3 In re Marriage of Katare. 175 Wn.2d 23, 35, 283 P.3d 546 (2012), certdenied. 133 S. Ct. 889 (2013).

4 In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219

(1982).

5 Katare, 175 Wn.2d at 35.

6 See RAP 2.5(a) (failure to timely object waives nonconstitutional errors).

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the evidence was "unfair" to her. Brittany cites two cases to support her claim,

an unpublished decision of Division Two of this court and an Illinois appellate

court decision. We do not consider unpublished decisions of this court.7 The

Illinois case involves a trial court's exclusion of certain portions of a therapist's

testimony based on an erroneous interpretation of parental consent provisions of

an Illinois statute.8 That case has no application to this one.

Brittany bases her objections to the testimony upon two circumstances:

(1) the fact that she was not informed and did not consent to her daughters'

participation in the therapy and (2) Dylan's presence during the counseling.

However, these issues go to the weight and credibility of the evidence, not its

admissibility. And Brittany's trial counsel emphasized these facts in arguing that

the father's decision to enroll the children in counseling without consulting the

mother not only violated the court'stemporary orders but also demonstrated poor

judgment and willingness to involve the children in the conflict. Counsel also

argued that Dylan's presence during the sessions severely undermined the value

of any statements made by the children to Paul. Brittany fails to demonstrate

7 GR 14.1(a).

s See In re Marriage of Kerman, 253 III. App. 3d 492, 624 N.E.2d 870, 191

Dec. 682(1993).

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NO. 71053-2-1/5

that the trial court abused its discretion in any manner with respect to the

evidence.9

In a similar vein, Brittany challenges the trial court's reliance upon the

recommendations of the social worker, Emily Brewer. Brittany argues that

Brewer's contact with Paul and reliance on Paul's opinions, which were biased in

favor of Dylan, tainted Brewer's recommendations to the court. But this court

does not retry the facts on appeal. "An appellate court may not substitute its

evaluation of the evidence for that made by the trier of fact."10 The trier of fact

resolves conflicting testimony and evaluates the evidence and credibility of the

witnesses.11

In any event, the social worker's recommendations do not appear

unfavorable to Brittany. Brewer concluded that no basis existed for domestic

violence restrictions, in spite of Dylan's allegations and Brittany's arrest. She

also rejected Dylan's position that he was more closely bonded to the children

and concluded that both parents were equally connected to them and that both

parents had been primary caregivers. Brewer recommended a residential

schedule that provided for approximately equal residential time with each parent

9 City of Spokane v. Neff. 152 Wn.2d 85, 91, 93 P.3d 158 (2004) (trial

court's evidentiary rulings are reviewed for an abuse of discretion).

10 Goodman v. Boeing Co.. 75 Wn. App. 60, 82-83, 877 P.2d 703 (1994),

aff'd. 127Wn.2d401,899P.2d 1265(1995).

11 Thompson v. Hanson. 142 Wn. App. 53, 60, 174 P.3d 120 (2007), affd,

168 Wn.2d 738, 239 P.3d 537 (2009).

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and joint decision making for major decisions. Brittany fails to show how these

recommendations reflect negative "preconceived notions" about her. In addition,

the particular provisions of the final parenting plan that Brittany challenges do

not, in fact, coincide with the social worker's recommendations. Therefore, the

record does not support Brittany's argument that Brewer's recommendations

unduly influenced the court.

Brittany recites evidence in the record supporting her position that even

when she worked full time and Dylan did not work, she performed the majority of

caretaking functions. She argues that, in the absence of evidence, the court

found otherwise. But, as explained, this court does not resolve conflicts in the

testimony. And perhaps more importantly, Brittany fails to identify any finding

made by the court identifying Dylan as the primary caretaker of the children.

Although she does not cite the pertinent Washington statute and relies

upon statutory factors that apply in other jurisdictions, Brittany claims, in

essence, that the court imposed a parenting plan that is not in the best interests

of the children. She claims that the court failed to consider her role as the

primary caretaker, her relocation to a better school district, and Dylan's lack of

support for her relationship with the children.

RCW 26.09.187 sets forth the criteria for establishing a permanent

parenting plan. The court must consider the following seven factors:

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(i) The relative strength, nature, and stability of the child's

relationship with each parent;

(ii) The agreements of the parties, provided they were

entered into knowingly and voluntarily;

(iii) Each parent's past and potential for future performance

of parenting functions as defined in RCW 26.09.004(3), including

whether a parent has taken greater responsibility for performing

parenting functions relating to the daily needs of the child;

(iv) The emotional needs and developmental level of the

child;

(v) The child's relationship with siblings and with other

significant adults, as well as the child's involvement with his or her

physical surroundings, school, or other significant activities;

(vi) The wishes of the parents and the wishes of a child who

is sufficiently mature to express reasoned and independent

preferences as to his or her residential schedule; and

(vii) Each parent's employment schedule, and shall make

accommodations consistent with those schedules.[12]

Brittany relies on her subjective interpretation of conflicting evidence to

support her claim that the facts support only a parenting plan where the children

reside primarily with her in Maple Valley. The court was entitled to rely on

evidence indicating that Dylan has an equally strong relationship with the children

and that both parties were involved in the day-to-day caretaking. RCW

26.09.187 does not require that the court compare school districts. On the other

hand, this statute does require the court to consider the children's ties and

12 RCW 26.09.187(3)(a).

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involvement in their community and school. This factor weighed in favor of a

plan providing continuity by allowing the children to maintain many of their

routines and attend the same school in Federal Way.13

Brittany argues that the court's failure to provide for joint decision making

is "not only unfair but cruel." She asserts that it is better for "both parents to

debate and discuss major decisions." While perhaps true as a general

proposition, the record amply demonstrates the parties' inability or unwillingness

to get along to the extent necessary to make appropriate decisions together in

their children's best interests.

Finally, Brittany claims the record establishes sufficient grounds to justify

modifying the existing residential schedule. But Brittany has not sought

modification of the parenting plan under RCW 26.09.270 or alleged any

substantial change in circumstances to support such a request.

Affirmed.

L^A

WE CONCUR:

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13 See RCW 26.09.187(3)(a)(v).

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