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IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON Inthe Matterofthe Marriage of BRITTANY FROMBACH, Appellant, and DYLAN FROMBACH, Respondent. No. 71053-2-1 DIVISION ONE UNPUBLISHED OPINION

FILED: November24, 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 Brittanyfails to demonstrate any legal errororabuse ofdiscretion inthe 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


### 1For clarity, we refertothe parties bytheirfirstnames.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 atthe 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 FederalWaythe majority ofthetime. Brittany, on the otherhand, urged the court to allow her to relocate and have the children reside primarily with her and her motherin Maple Valley. During thethree-daytrial inJuly 2013, the court heard thetestimony ofthe 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 Waythe majority ofthe time. The courtallowed Brittanyto 

### 2Brittanywas charged with fourth degree assaultand 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 complywith certain conditions. -2-NO. 71053-2-1/3
relocate, and the parenting plan allows for the children to reside with her 

### overnighteveryThursday and, on alternateweeks, fromThursday afternoon until Monday morning. The plan also allocates major decision-making authority to Dylan, exceptwith respectto religious issues. Brittany appeals. ANALYSIS 

### We review a trialcourt's parenting plan forabuse ofdiscretion.3 We defer to the trial court because of its unique opportunity to observe the parties, 

### determinetheir credibility, and sortout conflictingevidence.4 A trialcourtabuses its discretion if its decision is manifestly unreasonable or based on untenable 

### grounds oruntenable reasons.5 Brittanyclaims thatthetrial courterred inadmitting thetestimony ofNancy 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 notpreservedthis claim of error forreview.6 Moreover, Brittany has not identified any valid legal basis to exclude Paul's testimony. She asserts that Paul was biased infavor of Dylan and claims 

### 3 Inre 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).5Katare, 175Wn.2d at 35. 

### 6See RAP2.5(a) (failure to timelyobjectwaives nonconstitutional errors). -3-NO. 71053-2-1/4



### the evidence was "unfair" to her. Brittanycites two cases to support her claim, 

### an unpublished decision ofDivision 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 anerroneous interpretation of parental consent provisions of

an Illinoisstatute.8 Thatcase 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'strial counsel emphasized these facts in arguing that the father's decision to enroll the children in counseling without consulting the 

### mothernotonlyviolatedthe court'stemporaryorders but alsodemonstrated poor 

### judgment and willingness to involve the children in the conflict. Counsel also arguedthatDylan's presenceduringthe sessions severelyunderminedthevalue of any statements made by the children to Paul. Brittany fails to demonstrate

7GR 14.1(a). 

### sSee Inre Marriage ofKerman, 253 III. App. 3d 492, 624 N.E.2d 870, 191 Dec. 682(1993). -4-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 contactwith 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 ofthe evidence forthat made by the trier offact."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 witheach parent 9 City of Spokane v. Neff. 152 Wn.2d 85, 91, 93 P.3d 158 (2004) (trial 

### court's evidentiaryrulings are reviewedfor an abuse ofdiscretion). 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. 142Wn. App. 53, 60, 174 P.3d 120 (2007), affd, 168Wn.2d 738, 239 P.3d 537 (2009). -5-NO. 71053-2-1/6

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

### recommendations reflect negative "preconceived notions" about her. Inaddition, 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 fulltime 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 bythe courtidentifying Dylanas the primary caretakerofthe children. 

### Although she does not cite the pertinent Washington statute and relies 

### upon statutory factors that apply in other jurisdictions, Brittany claims, in essence, thatthe court imposed a parenting plan that is not inthe 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 supportforherrelationshipwiththe children. RCW 26.09.187 sets forth the criteria for establishing a permanent 

### parenting plan. The court must considerthe following sevenfactors:
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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 ofthe 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, orothersignificantactivities; (vi) The wishes ofthe parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his orherresidential schedule; and (vii) Each parent's employment schedule, and shall make accommodations consistentwith those schedules.[12] Brittany relies on her subjective interpretation of conflicting evidence to 

### support her claim thatthe 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 thatDylan has an equally strong relationshipwiththe children and that both parties were involved in the day-to-day caretaking. RCW 26.09.187 does not require thatthe 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). -7-NO. 71053-2-1/8

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 attendthe same school inFederalWay.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 incircumstances to supportsuch a request. Affirmed. 

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WE CONCUR: 

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13 See RCW 26.09.187(3)(a)(v). -8-