IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Marriage of No. 72562-9-1 o en o 

# SOLOMONM. MEKURIA, j Appellant/Cross- ] Respondent, ] DIVISION ONE ~a ro CO

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## ASTERMENFESU, j UNPUBLISHED Respondent/Cross-' Appellant. ) FILED: September 28, 2015

Cox, J. — Solomon Mekuria appeals from trial court orders modifying a 

### parenting plan and orderof childsupport. He contends the trial court abused its discretion inordering him to pay his daughter's private school tuition, allocating sole decision-making authority for health care decisions to the mother, and 

### changing the location forexchanging their daughter. He also claims the trial court should have imposed restrictions pursuantto RCW 26.09.191 (3)(a) because the mother's visual impairment allegedly constituted "neglect or substantial nonperformance ofparenting functions." Aster Menfesu cross-appeals the trial court's orders allowing Mekuria to 

### petition for a modification ofeducational decision-making authority without a showing ofadequate cause. She also contends the court abused its discretion by giving Mekuria custody of their daughter's passport.No. 72562-9-1/2 The trial court abused its discretion by prospectively permitting Mekuria to petition for modification ofthe parenting plan without a showing of adequate
cause. Accordingly, we reverse and remand to the trial court with instructions to strike this provision. In all other respects, we affirm. Mekuria and Menfesu were married in 2007. The parties have one daughter, E.M., who was born on April 23, 2008. In 2002, Menfesu was diagnosed with multifocal chorioretinitis, an inflammatory eye disease resulting in significantvision impairment. In 2005, Menfesu left herjob as a nursing assistant. Since 2006, Menfesu has received social security disability benefits for her condition. In 2009, Menfesu petitioned for dissolution. The parties proceeded to trial
on the dissolution in 2010. Menfesu testified regarding her medical condition and the limitations to her sight. The trial courtentered a decree ofdissolution and a final parenting plan. The parenting plan provided that E.M., then two years old, would reside four days perweek with Menfesu and three days perweek with Mekuria until she reached school age. Once E.M. started kindergarten, E.M. would reside with Menfesu exceptfor every otherweekend, when Mekuria would pick her up from school on Friday afternoon and return herto school on Monday morning. Any exchanges that did not take place at school were to occuratthe Beacon Hill police station. The parenting plan provided thatthe parties hadjoint decision-making authority regarding E.M.'s non-emergency health care but that Menfesu had sole decision-making authority for E.M.'s education. Neither party appealed.No. 72562-9-1/3 On March 5, 2013, Mekuria petitioned for a major modification ofthe parenting plan. Mekuria soughtto become E.M.'s primary residential parent and to limitMenfesu's residential time to supervised visits on Saturday afternoon, 

### claiming that E.M. had received minor cuts and injuries inMenfesu's care due to Menfesu's vision impairment. A superior courtjudge dismissed Mekuria's modification petition, finding there was not adequate cause to proceed withthe modification because the trial courtjudge inthe dissolution proceeding was "well
aware ofthe vision impairment and after hearing all ofthe evidence decided that the motherwas the appropriate person to have custody ofthe child." Mekuria appealed the dismissal. This court affirmed in an unpublished opinion. This court decided that Mekuria had not established adequate cause because the mother's medical condition "was known to the trial court [inthe dissolution proceeding] atthe time it 

### established the parenting plan" and "[t]herewas no evidence ofanyworsening of the condition." There was no further review by the supreme court. 

### On April 4, 2013, Menfesu filed a petition for a minor modification ofthe 

### parenting plan, commencing this proceeding. She soughtchanges to the provisions regarding health care decision-making and the exchange location. She also sought custody ofE.M.'s passport. Asuperiorcourt commissioner found adequate cause to modify the parenting plan.No. 72562-9-1/4 In his trial brief, Mekuria objected to Menfesu holding E.M.'s passport. He claimed he would presentevidence that "the mother can easily and permanently 

### hide the child from me ifshe iseverpermitted to go to Ethiopia."1 Trial on Menfesu's modification petition took place overfive days. The court heard testimonyfrom eightwitnesses and admitted 18 exhibits. On July 11, 2014, the trial court entered a modified parenting plan and child support order. The parenting plan provided that Menfesu would have sole decision-making authority for both E.M.'s education and health care. The parenting plan changed the location ofexchanges of E.M. from the police station to the Walmart store in Renton. The parenting plan gave Mekuria authority to obtain a passportfor E.M. and provided that he would be the custodian ofthe passport. The parenting plan also specified that ifMenfesu "proposes to travel out ofthe country she shall give 

### the father 10 days notice so that he can provide herwiththe child's passport," which Menfesu would be required to return to Mekuria within five days of return 

### to the United States.2 The parenting plan also contained minorchanges to the residential schedule that are not challenged by eitherofthe parties. The 

### parenting plan did not impose any restrictions under RCW26.09.191. The child supportorderprovided that Menfesu would pay E.M.'s private 

### school tuitionexpenses but that "[i]f[Menfesu] becomes ineligible for the tuition reduction that she currently receives, or ifthe tuitiondue increases by more than 25% this order shall be modified withoutthe need for a showing ofsubstantial

1Clerk's Papers at 88. 2 Id. at 371-72.No. 72562-9-1/5 change incircumstances to order [Mekuria] to pay his proportional share ofthe tuition."3 In a memorandum opinion, the trial court stated that "[E.M.] appears to be doing well in Kindergarten" butthat ithad "concerns regarding herfuture academic success given the testimony regarding the mother's ability to help the 

### child withlessons given that she is legallyblind."4 The trial court stated that, due to this concern, "the father may petition the courtto modify the decision making
on educational issues without a showing of adequate cause any time afterJune 1,2016."5 Mekuria moved for reconsideration, which the trial court granted by 

### entering findings on the issue of private school tuition. Mekuria sought reconsideration ofthe trial court's findings, which the trial courtdenied. 

### Proceeding pro se, Mekuria appeals. Menfesu cross-appeals. STANDARD OF REVIEW 

### We review a trial court's decision to modify a parenting plan or an orderof 

### child supportfor an abuse of discretion.6 "Atrialcourt's decision will not be reversed on appeal unless the court exercised its discretion in an untenable or 

### manifestlyunreasonable way."7

3 Id at 392. 4 Id at 404. 5 Id at 406. 6In re Marriage ofZiqler and Sidwell. 154Wn. App. 803, 808, 226 P.3d 

### 202 (2010) (parenting plan); McCausland v. McCausland, 159 Wn.2d 607, 615, 152 P.3d 1013 (2007) (child support order). 7 In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). 5No. 72562-9-1/6 

### We review the trial court's findings of fact to determine whether substantial 

### evidence supports the findings.8 Substantial evidence is evidence sufficient to 

### persuade afair-minded, rational person of the truth of the finding.9 However, we do not review the trial court's credibility determinations, nordo we weigh 

### conflicting evidence.10 Unchallengedfindings offact are verities onappeal.11 PRIVATE SCHOOL TUITION Mekuria contends thatthe trial court abused its discretion in ordering him 

### to pay a proportional share of E.M.'s private school tuition. A trial court may exercise its discretion to determine the necessity for and the reasonableness of 

### allexpenses inexcess ofthe basic child supportobligation, including private school tuition.12 Once a trial courtdetermines such expenses are reasonable 

### and necessary, they "shall be shared by the parents in the same proportion as 

### the basic childsupportobligation."13 Atthe time ofthe trial on Menfesu's modification petition, E.M. was 

### attendingkindergarten at St. Anthony's, a private schoolin Rentonwithin walking distance ofMenfesu's home. Menfesu testified that she paid E.M.'s tuition and received a discounted rate based on her income. Mekuria testified that he

8Sunnvside Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214, 43 P.3d 1277 (2002). s Sunnvside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). 10 Inre Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).11 In re Marriage ofBrewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).12 RCW 26.19.080(4). 13 RCW 26.19.080(3). 6No. 72562-9-1/7 

### agreed with the decision to send E.M. to private school, though he preferred for herto attend a different private school thatwas closerto his home in Everett. 

### The trial court made the following findings regarding the reasonableness and necessity of private school tuition: [T]he parties should share inthe private school tuition cost, based on the expressed desire of both parties thatthe child attend private school, the father's argumentthat public school would be detrimental to the child, the fact that the child has been attending private school for the pastyear, and thatthe father has sufficient income to contribute to the costs. The courtfurther finds that given the mother's alleged limitations with reading and assisting [E.M.] with homework, it is in [E.M.'s] best interestto attend private school where the student to teacher ratio is smaller.[14] Mekuria contends that "private school tuition cannot be ordered by a court without certain requisite factors, including a pattern ofprivate schooling] being used for a substantial period oftime and that a change from that pattern would 

### be detrimental to the child."15 Mekuria also argues that a trial court is excluded from considering a parent's income or ability to pay. Mekuria is incorrect. In In
re Marriage ofStern, cited by Mekuria, this court held that relevantfactors presenting a legitimate reason for ordering payment ofprivate school tuition include, but are not limited to, "familytradition, religion, and past attendance at a 

### private school."16 But this is a non-exclusive listand a trial court may consider

14 Clerk's Papers at 523-24. 15Appellant's Amended Opening Briefat 6. « 57 Wn. App. 707, 720, 789 P.2d 807 (1990). 7No. 72562-9-1/8 additional factors in making its determination whether private school tuition is a 

### reasonable and necessary expense.17 The trial court must also considera parent's abilityto pay.18 Mekuria assigns errorto the trialcourt's findingregarding his ability to pay. But substantial evidence inthe record supported this finding. The child support worksheet record shows that Mekuria's monthly gross income was $7,547.73, as 

### compared to Menfesu's monthly gross income of$1,410.00. Mekuriadoes not challenge this calculation. The trial court did not abuse its discretion in 

### determining that Mekuria had the abilityto pay a proportionate share of private school tuition. Though Mekuria contends that his economic circumstances have 

### since changed, this evidence on which he now relies was not before the trial court. We consideronlythe evidence thatwas before the trial court at the time it made its decisions.19 

### Substantial evidence supported the trial court's finding regarding 

### Mekuria's abilityto pay. Thisfinding, in conjunctionwith the remaining 

### unchallenged findings, adequately support the trial court's order. The trial court did not abuse its discretion inordering Mekuria to pay a proportional share of E.M.'s tuition should Menfesu cease to receive a tuition reduction or ifthe cost of tuition increases by more than 25 percent.

" State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 428, 154P.3d 243 (2007). is]d at429-30. 19 RAP 9.1; RAP 9.11. 8No. 72562-9-1/9

TRANSPORTATION 

### Mekuria argues thatthe trialcourt abused its discretion by changing the 

### exchange location fromthe Beacon Hill police station to the Renton Walmart. He argues that this requires him "to do 100% oftransportation for visitation purposes, meeting [Menfesu] near her home instead of a mid-point," and thatthe 

### trial court should have allocated this responsibility more equallywith Menfesu.20 Menfesu testified that ittook 30 to 40 minutes to reach the police station
on the bus from her house. Menfesu also testified that Mekuria was typically at 

### least an hour late to the exchanges and she and E.M. once had to waitthree hours for him to arrive. Menfesu testified thatthe police station was sometimes 

### closed at the time of the exchange and she and E.M. wouldhave to waitoutside in the cold or rain. Menfesu testified thatWalmart would be a more convenient location because itwas a ten minute walk from her house, was open long hours, 

### and had things to amuse E.M. while she waited. Mekuria testified that he had no objection to changing the exchange location to Walmart. The trial court admitted copies ofmaps showing thatthe 

### Walmart location resulted in only five additional minutes of travel time for
Mekuria. Substantial evidence inthe record supported the trial court's order 

### modifying the exchange location, including the fact thatitwas significantlyeasier

20Appellant's Amended Opening Brief at 1. 9No. 72562-9-1/10 for Menfesu to reach and was open longer hours. Moreover, Mekuria expressly consented to the change. The trial court did not abuse its discretion. DECISION-MAKING Health Care Mekuria contends thatthe trial court erred inallocating sole decision making authority regarding E.M.'s health care to Menfesu. There was no abuse of discretion in this respect. A parenting plan must allocate decision-making authority to one or both 

### parents regarding the child's education, health care, and religious upbringing.21 Pursuantto RCW 26.09.187(2), a trial court must order sole decision-making to
one parentwhen it finds that (1) a limitation on the other parent's decision 

### making authority is mandated by RCW 26.09.191; (2) both parents are opposed to mutual decision-making; or (3) one parent is opposed to mutual decision 

### making and the opposition is reasonable based on the following criteria: (i) The existence of a limitation under RCW 26.09.191; 

### (ii) The history ofparticipation ofeach parent indecision making in each ofthe areas in RCW26.09.184(5)(a); 

### (iii) Whetherthe parents have a demonstrated abilityand desire to cooperate with one another indecision making ineach ofthe areas in RCW 26.09.184(5)(a); and 

### (iv) The parents' geographic proximity to one another, to the extent 

### that itaffects theirabilityto make timely mutualdecisions.1221 Mekuriaargues thata trial court may not restrict his right to participate in decision-making in the absence ofexpress findings that a parenthas engaged in conduct outlined in RCW 26.09.191. Butthat is only one ofthe factors a trial 21 RCW 26.09.184(5)(a). 22 RCW 26.09.187(2)(b),(c). 10No. 72562-9-1/11
court must consider. The remaining facts supportthe trial court's ordergiving Menfesu sole decision-making authority regarding E.M.'s health care. Menfesu testified that that she took E.M. to a clinic in Renton for heryearly well-child visits butthat Mekuria did nottell herthat he was simultaneously taking E.M. to a different clinic in Everett. Menfesu testified that when she learned this, she contacted the Everett clinic to get E.M.'s immunization records butthat the clinic would only release them to Mekuria. As a result, E.M. received duplicate vaccinations at herfive-year-old well-child visit. Menfesu also testified that she had difficulty obtaining E.M.'s medical and dental insurance cards from Mekuria. Finally, Menfesu testified that it would take her approximately three or four hours to take E.M. to well-child visits atthe Everett clinic. Both the guardian ad litem and a social worker recommended that Menfesu be granted sole decision 

### making authority because ofthe parents' inability to communicate and cooperate regarding E.M.'s health care. Education 

### Menfesu cross-appeals the provision allowing Mekuria to petition for a modification ofeducational decision-making authority in2016 without a showing 

### ofadequate cause. We agree with Menfesu that this was an abuse of discretion. A court may "modify a parenting plan or custody decree pursuantonly to RCW 26.09.260 and .270."23 RCW 26.09.260(1) provides that a trial court may 

### not modify a parenting plan unless itfinds that (1)there has been a substantial

23 In re the Parentage ofC.M.F.. 179 Wn.2d 411, 419, 314 P.3d 1109 (2013). 11No. 72562-9-1/12 

### change ofcircumstances ofeither parentor of a child, and (2) the adjustment is inthe best interest ofthe child. A "substantial change incircumstances" is a fact 

### that is unknown to the trial court at the time itentered the original parenting plan
or an unanticipated fact that arises afterentry ofthe original plan.24 RCW 26.09.270 requires a party seeking to modify a parenting plan to submit "an affidavit setting forth facts supporting the requested orderor modification." The court "shall deny the motion unless it finds that adequate cause for hearing the 

### motion is established bythe affidavits."25 "Adequate cause" means, at a minimum, evidence sufficientto support a finding on each fact thatthe moving 

### party mustprove inorderto modify the parenting plan.26 A court abuses its discretion if it fails to followthese procedures.27 The trial court abused its discretion by ruling that Mekuria may petition in the future to modify the educational decision-making provision in2016 without a showing of adequate cause. This ruling disregards the mandatory provisions of controlling statutes. RCW 26.09.260 requires Mekuria to make a prima facie showing that there has been a substantial change in circumstances since the time ofthe original parenting plan and thatthe modification is in E.M.'s best interests. On this basis alone, the court abused its discretion.

24 In re Marriage ofTomsovic. 118 Wn. App. 96, 105, 74 P.3d 692 (2003). 25 RCW 26.09.270. 26 In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004). 27 In re Parentage of M.F., 141 Wn. App. 558, 572, 170 P.3d 601 (2007). 12No. 72562-9-1/13 

### Moreover, the basis ofthe court's decision is not withinthe range of 

### acceptable choices that the properexercise of discretion requires.28 Specifically, the trial court appears to have speculated that both Menfesu's vision would 

### further deteriorate and any such possible deterioration would negatively impact her ability to support E.M. academically. There is no evidence inthis record supporting eitherfactual premise. No evidence was presented regarding whether Menfesu's vision had changed since the 2010 dissolution trial. Moreover, the evidence showed that Menfesu was more than capable of ensuring E.M.'s educational needs were met. A family friend came overto Menfesu's house every Tuesday afternoon for approximately two hours to go
over E.M.'s homework for the week and read any notes from the school. Menfesu's friend also read to E.M. and helped herwith school projects. On Wednesdays, Thursdays and Fridays, Menfesu arranged for E.M. to attend a local afterschool homework assistance program. Menfesu also checked out audiobook versions ofbooks E.M. was assigned at school so thatthey could listen to them together. E.M.'s teachers were aware ofMenfesu's vision impairment and would give her information inverbal ratherthan written form. The principal of St. Anthony's testified that E.M. was doing "very well" in school and "exemplary" in some subjects.

2S In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997). 13No. 72562-9-1/14
We have held that a parent's disability "is not, inand of itself, proofthat a 

### parent is unfit or incapable."29 As amicus curiae, the National Federation of the Blind notes, visually impaired parents throughoutthe country "successfully care for their children and provide them with educational support and guidance at all ages," and that for parents with disabilities, "[njegative speculations about the future are common and often seem to be based on stereotypes ratherthan on 

### evidence."30 Applyingthese principles here, even ifwe assumed both thatthe mother's vision deteriorated further, there is absolutely no evidence here that would adversely impact her ability to parent successfully. We decline to speculate otherwise. Finally, it is difficult to see how inthe absence ofthe required showing that the mother's vision adversely impacted her ability to parent, a decision depriving her ofdecision-making authority would be inthe best interest ofthe child. After 

### all,that isthe properfocus ofthe relevant inquiry a court must make underthe circumstances ofthis case. Forthese reasons, the court abused its discretion in this respect. RESTRICTIONS 

### Finally, Mekuria contends thatthe trial court erred byfailing to impose 

### restrictions against Menfesu pursuantto RCW26.09.191(3)(a), which provides that "the courtmay preclude or limit any provisions ofthe parenting plan" inthe 29 In re Dependency ofT.L.G., 126 Wn. App. 181,203, 108 P.3d 156 (2005).

### 30Megan Kirshbaum, Daniel Taube and Rosalind Lasian Baer, Parents with Disabilities: Problems in Family Court Practice, 4 J. Ctr. for Families, Child. & Cts. 38 (2003). 14No. 72562-9-1/15

event of "[a] parent's neglect or substantial nonperformance ofparenting functions." Mekuria argues that Menfesu "neglected" her parental duties because she sought community assistance for help with E.M.'s homework instead of helping E.M. by herself. But RCW 26.09.191 limitations were not at issue in this modification proceeding, and Mekuria's previous attemptto modify the parenting plan on these grounds was denied. PASSPORT Menfesu contends the trial court abused its discretion by giving Mekuria custody ofE.M.'s passport. We hold that underthe circumstances of this case that are currently before us, the trial court acted within its discretion. 

### The guardian ad litemrecommended that Menfesu be authorized to obtain 

### and hold E.M.'s passport, based on her opinion that "[i]twould be beneficial for 

### [E.M.] to have provisions related to International travel to avoid conflicts in the future."31 The guardian ad litem testified she had no basis to believe either parentwould abscond with E.M. from the United States. 

### Mekuria, who appeared pro se, did not presentevidence ortestimony 

### regarding the passportissue. During closing argument, Mekuriafrequently addressed subjects thatwere not at issue in the proceeding. After redirecting Mekuria several times, the trial court proceeded to ask Mekuria questions 

### regarding several subjects, including the exchange location, his employment, and E.M.'s health insurance. The trial court also prompted Mekuria to address his 

### objections regarding the passport. Mekuria responded:
31 Exhibit 1. 15No. 72562-9-1/16
Iwas inthe other room, overheard hertalking about

- she's coming to Ethiopia, going back to Ethiopia, and Ithinkthey asked herfor some reason - "You don't drive a car, so"

- and things like that

- and she answered, "No, no, no, Ican drive when Icome back, when Iam back in my country, but Icannot drive inthis - inthe US, Ican drive in my country." So now that

- I remember that now - became clear

- she wanted the passport. She wanted

- she has the - this income from Social Security and probably child-supportgoes directto her bank account, so she can secure all ofthis. She can go back home and

- 

### to take the child and Inever see the child. Thatwas my concern.l32] When asked ifhe wanted E.M. to have a passport, Mekuria responded, Iwould like to have that, yes - both ofus control it - with the understanding - not 100%, like she stated on her statement, she wants to have control and she wants to travel whenever she wants 

### to, things like that - Iwill object.t33J The trial court gave Menfesu's attorney the opportunity to address any of the issues raised inherquestioning of Mekuria. Menfesu's attorney did not address the passport issue. 

### Menfesu now argues thatby making Mekuria the custodian of E.M.'s 

### passport, the trial court improperlymodified the parenting plan withoutcomplying with RCW 26.09.260. But Barton recommended that the trial court give one 

### parent custody over E.M.'spassport "to avoidconflicts in the future." Furthermore, Mekuria testified that he overheard a telephone conversation in 

### which Menfesu discussed "going backto Ethiopia." Based on this evidence, the trial courtfound there had been a substantial change ofcircumstances and the modification was in E.M.'s best interest. Though Menfesu challenges the



### 32 Report ofProceedings (April 7, 2014) at 570. 33 Id at 570-71. 16No. 72562-9-1/17 credibility ofMekuria's testimony, we note thatthe trial courtexpressly found that Mekuria "testified credibly to a telephone conversation the mother had indicating 

### her potential plan to move out ofthe country at some point."34 A trialcourt's credibility determinations are not subjectto review on appeal. Relying on Katare v. Katare, Menfesu argues that, in orderto restrict her 

### abilityto travel, it must make a finding that shewas a flight risk.35 But Katare is inapposite. In Katare, following evidence that the children's father had threatened to abscond with the children to India, the trial court imposed travel 

### restrictions pursuantto RCW26.09.191 (3)(g).36 The parenting plan prohibited the fatherfrom taking the children outofthe country untilthey turned 18 and denied him access to their passports or birth certificates; the fatherwas also 

### required to surrenderhis ownpassportwhen the children visitedwith him.37 Here, incontrast, nothing restricts Menfesu's right to travel internationally with 

### E.M. The parenting plan makes Mekuria the custodian of E.M.'s passport. If Menfesu wishes to travel internationally with E.M., she must requestthe passport from Mekuria with at least 10 days' notice and must return it to him within five 

### days of returning to the United States. Though Menfesu argues that giving Mekuriacustody of E.M.'s passportwill generate future conflictbetween the 

### parties, we decline to speculate on what may happen in the future.

34 Clerk's Papers at407. 35 Katare v. Katare, 175 Wn.2d 23, 283 P.3d 546 (2012). 36 Id at 33-34. 37 Id at 31. 17No. 72562-9-1/18 Finally, Menfesu argues that she was denied due process because she
was not provided with notice and an ability to cross-examine Mekuria's statement, which he made after the close ofevidence. But Mekuria asserted in his trial briefthat he would present evidence that Menfesu planned to take E.M. to Ethiopia. Furthermore, the trial court noted that ithad elicited additional testimony from Mekuria after the close ofevidence and offered Menfesu's attorney an opportunity to follow up. The trial court's consideration of Mekuria's statement did not violate Menfesu's due process rights.
ATTORNEY FEES Menfesu requests attorney fees on appeal under RCW 26.09.140. Mekuria opposes the request, claiming that he does not have the ability to pay. We exercise ourdiscretion and award reasonable attorney fees and costs to Menfesu. RCW 26.09.140 provides in relevant part as follows:
Upon any appeal, the appellate court may, in its discretion, order a partyto payfor the cost to the otherparty ofmaintaining the appeal and attorneys' fees in addition to statutory costs. The court may orderthatthe attorneys' fees be paid directly to the attorney who may enforce the order in his or her name. 

### Determining whether a fee award is appropriate underthis statute requires this courtto considerthe parties' relative ability to pay and the arguable merits of 

### the issues raised on appeal.38 Here, both parties have provided updated

36 In re Marriage ofLeslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998). 18No. 72562-9-1/19
financial declarations, as required. Having considered the merits ofthis appeal

as well as the financial resources data contained in the required filings, we conclude that it is undisputed that Menfesu has the required need. Although Mekuria contends he does not have the ability to pay, our review of his updated financial declaration shows that he does. Accordingly, Menfesu is entitled to an award ofreasonable attorney fees and costs on appeal. 

### Northwest Justice Project, as the proper assignee of her right to fees and costs, is entitled underthe statute to receive these amounts and to enforce the order in its own name. It is so ordered, subjectto its compliance with RAP 18.1(d). 

### We affirm the modified parenting plan in allaspects exceptfor the 

### provision permitting Mekuria to seekto modify decision-making authorityfor E.M.'s education without a showing ofadequate cause. We remand to the trial courtwith instructions to strike this provision. We award reasonable attorney 

### fees and costs to Menfesu, subjectto itscompliance with RAP 18.1(d). 

# ^rsx.T.

WE CONC 

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19