F I L.L.

OU'YIT OF APPEALS

MVISIOM 11

2013 JUL -2 AM 9- 05

IN THE COURT OF APPEALS OF THE STATE GIAMC - SOMSK&

By

DIVISION II PITY

STEFANIE JEAN BENNETT, f /k/a

STEFANIE XITCO,

No. 42275 -1 -II

Appellant,

V.

JOHN MICHAEL XITCO, UNPUBLISHED OPINION

WORSWICK, C.J. — Stefanie Bennett appeals the trial court's parenting plan modification

reducing her residential time with her children and increasing the residential time given to the

children'sfather, John Xitco, and designating Xitco as the children'sprimary residential parent.

Bennett argues that the trial court erred because (1) the trial court's findings that the children's

environment was detrimental was an abuse of discretion, and (2) the trial court'sfindings do not

support its conclusion that the benefits of modification outweighed the harm to the children. We

affirm.

FACTS

A. Procedural Facts

Bennett and Xitco have two children: NX, age 12, and CX, age 10 at the time of trial.

The parties divorced in 2002, and a court entered a parenting plan.

The parenting plan was modified in 2008, providing that the children would normally

reside with Xitco from Sunday through Tuesday or Wednesday and with Bennett for the rest of

the week. The 2008 plan called for the parents to jointly decide issues of non - emergency
No. 42275 -1 -II

medical care, with disagreements being resolved by Dr. Larry Larson. Issues ofreligious

upbringing were also to be decided jointly. The plan also called for the children to remain

enrolled at St. Patrick'sSchool unless the parents mutually agreed otherwise.

Xitco filed a petition to modify the parenting plan in 2010. The case proceeded to a

bench trial. The primary issues developed at trial were:

Bennett'sunfounded domestic violence petitions and her calling the police on Xitco

without good cause;

Bennett unilaterally pulling the children from Thursday morning mass at St. Patrick's;

The children'sexcessive tardiness and absence from school during Bennett'sresidential

time; and

Bennett'sunilateral medical decisions for the children.

Clerk's Papers (CP) at 104. The facts adduced at trial relevant to each of these issues are set

forth below.

B. Substantive Facts

1. Bennett'sDomestic Violence Petitions and Calling the Police

Bennett filed two petitions for domestic violence protection orders against Xitco. The

only evidence regarding these petitions was the testimony of witnesses; documentary evidence

was not submitted. Bennett filed for the first order in December 2009. Bennett claimed that

Xitco "refused to give the children back and then [she] basically was fed up with being

constantly threatened and [she] had had enough. And [she] felt like it was within [her] rights and

in [her] best interest to stand up and say, you know, [she needed] protection from this person." 4

Report of Proceedings (RP) at 492. Bennett'spetition for a protection order was denied, and

Xitco was never served in connection with this petition.

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Bennett petitioned for the second domestic violence protection order in February 2010.

According to Bennett, she filed for the order after an incident where Xitco screamed at her in

front ofthe children at her house. In that same petition, Bennett also described a different

incident outside on her porch where Bennett thought Xitco was going to hit her. Bennett

admitted that she had hit Xitco in the stomach during this incident, but she claimed that it was

only because he frightened her by coming close with an upraised hand. Bennett obtained a

temporary protection order, but the court denied her petition for a final order.

According to Xitco, Bennett had charged at him and punched him in the abdomen during .

the incident, leaving a bruise, after he mentioned her decision to unilaterally pull the children

from mass at St. Patrick's. James Cathcart, the guardian ad litem who interviewed the parties,

was unable to conclude that Xitco committed domestic violence.

Bennett also called the police on one occasion for a "well child check." 4 RP at 504 -05.

On that occasion, NX was having a birthday party at Xitco's house. NX drove his dirt bike up a

one lane private road that he had been forbidden to ride on. Xitco confronted NX, and took

NX'"s dirt bike away as punishment. NX threw a "fit" and called his dad an "asshole" and started

to run away, but Xitco grabbed NX's wrist and told him not to talk to adults that way. 1 RP at

107. NX then ran away down the beach. Xitco immediately e- mailed Bennett to explain what

had happened.

NX then called Bennett, and he hysterically told her that Xitco had called him an

asshole," and that Xitco had twisted his arm behind his back and hurt his shoulder. Bennett

called the police. Bennett did not read Xitco's e -mail until later. The police, on arriving at

Xitco's house, found nothing amiss.

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2. Unilateral Withdrawalfrom Mass

NX and CX attended St. Patrick's, a Catholic school, in accordance with the 2008

parenting plan. St. Patrick's held weekly mass on Thursday mornings. According to the

school'sprincipal, Frances Jordan, the Thursday mass was part of St. Patrick'scurriculum.

Jordan testified that mass provided benefits for the children; the children had a chance to lead

prayers, which improved their public speaking, the children heard bible readings and a homily

and had the opportunity to reflect on the readings, and the children learned to stay quiet during

the services. About 20 percent of St. Patrick'sstudents were not Catholic, but they were still

expected to attend mass to learn "about respecting the Catholic faith, [and] being tolerant of

other religions." 2 RP at 196. Students were graded for mass attendance.

Bennett was unhappy with NX and CX attending St. Patrick's. In 2010, Bennett sent

Jordan a letter informing her that NX and CX would no longer attend Thursday mass. Bennett

stated in the letter that her lawyer advised her that the school could not force the children to

attend. Jordan testified that in her ten years at St. Patrick's, no other parents had formally pulled

their children mass as Bennett had done. AtBennettclaimed that her reasons for

pulling the children from mass were, "we're all covered by the First Amendment," and that she

did not think the children should be taking a Catholic communion. 3 RP at 459 -60. Bennett

admitted that she did not follow the parenting plan when unilaterally pulling the children from

mass. Bennett testified that she was not aware of the children being ridiculed for not attending

mass.

Xitco, in contrast, testified that the children'sfailure to attend mass affected their grades

and affected them socially. "They get teased by the other kids for not going to [m]ass," he

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No. 42275 -1 -II

stated. 1 RP at 78. Xitco believed it was important for the children to attend mass because they

should follow the same curriculum as the rest ofthe school.

Cathcart, the guardian ad litem, testified, "I never got a sense that [Bennett] had cancelled

the [in] ass attendance for any reason other than she could." 2 RP at 240. Cathcart believed that

Bennett's decision to pull the children from mass "sounded like competition rather than one that

was based on the interests ofthe children." 2 RP at 240.

3. Tardiness and Absences

Although the parties and multiple witnesses testified about the children'stardiness and

absences from school while living with Bennett, Cathcart presented the most complete analysis.

Cathcart testified that in the 2009 -10 school year, and in the first half of 2011, the children were

absent one day for every three they attended when Bennett was responsible for delivering them

to school. Although Bennett attempted to justify these absences based on medical problems NX

was purportedly having, she could not explain why CX was usually absent on the same days as

NX.

Based on his review of attendance records, Cathcart calculated that NX missed 3.3

percent of school days and that CX missed slightly less when Xitco was responsible for taking

them to school. But Cathcart calculated that NX missed 37 percent of school days and CX

slightly less when Bennett was responsible for taking them to school. Bennett disputed these

numbers during her testimony, claiming that she wrote down the correct attendance figures in a

notebook. But Bennett did not have her notebook at trial. Bennett submitted no documentary

evidence to dispute Cathcart'sassessment.

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Xitco submitted a summary ofthe children's attendance records from 2008 to 2010 that

he had prepared based on school attendance sheets, which he also submitted. Xitco calculated

that CX was absent 30 times in the 2008 -09 school year and tardy 15 times. Xitco calculated

that NX was absent 31 times that year and tardy 14 times. For the 2009 -10 school year, Xitco

calculated that CX was absent 20 times and tardy 22 times. Xitco calculated that NX was absent

26 times and tardy 32 times.

The children's2009 -10 and 2010 -11 report cards were also submitted, which reported

their total days absent and tardy. NX's 2009 -10 report card reported that he was absent 25 times

and tardy 30 times. CX's 2009 -10 report card reported that she was absent 17 times and tardy 20

times. This report card bore a notation that CX was not counted tardy for missing Thursday

mass; NX's report card did not have such a notation. The 2010 -11 report cards reflected the first

two trimesters of that school year. NX'sreport card for that year listed 6 absences and 14 days

tardy. CX's report card listed 17 absences and 17 days tardy.

4. Health Decisions

According to Bennett, NX had been complaining of chronic stomach pain the past

two years. Bennett acknowledged that Dr. Larson, the designated physician to resolve medical

care disputes in the 2008 parenting plan, found NX to be perfectly healthy. In approximately

2009, Bennett then took NX to a naturopath without consulting Xitco. Bennett testified that she

simply chose not to follow the, parenting plan when she decided to consult the naturopath.

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No. 42275 -1 -II

Later, Dr. Larson referred NX to Dr. Pickens, who found that NX had a bacterial

overgrowth and stool impaction. NX's symptoms improved with vitamin D and probiotic

supplements. 

I

Xitco testified that he believed NX was healthy but that NX carried a lot of stress. And

aside from the infection that Dr. Pickens found, Xitco agreed with Dr. Larson that there was

nothing physically wrong with NX.

According to Cathcart, NX's stomach problems were primarily stress related. He

reported that both Dr. Larson and NX's psychologist agreed that Bennett was projecting her own

symptoms onto NX. Bennett had a severe condition called dysautonomia. Cathcart also

believed the symptoms NX reported were reflective of his mother'scondition rather than any

condition of his own.

Moreover, Cathcart testified that although Bennett believed that Xitco was sending NX to

school when he was sick, the school did not report seeing NX show any symptoms of illness. In

fact, according to Maory Lou Xitco, NX's grandmother, on one occasion when NX asked to go

home sick and she told him he would have to lay in bed - and restwithouttelevision, NX went

back to class rather than go home.

Furthermore, Cathcart reported that Bennett subjected both NX and CX to "an awesome

list" of diagnostic medical tests, "both invasive and noninvasive." 2 RP at 254. There was no

evidence that CX had ever displayed symptoms of any medical problem that would justify

1 Medical records from Dr. Pickens were not admitted and the record does not show when,

precisely, NX visited him.

2

Bennett testified that dysautonomia is an autonomic dysfunction. ' -Dysautonomia" is defined

as the "[a]bnormal functioning of the autonomic nervous system." STEDMAN'SMEDICAL

DICTIONARY 530 (26th ed.1995).

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No. 42275 -1 -II

medical testing. Cathcart reported that Dr. Larson believed that the volume oftests was placing

an "emotional or physical" burden on the children. 2 RP at 254.

C. The Trial Court's. Decision

The trial court granted Xitco's petition to modify the parenting plan. The trial court

issued a letter ruling, the substance of which was set forth in a subsequent order on modification.

The trial court further issued a modified parenting plan.

In its order on modification, the trial court concluded:

The children's environment under the custody decree /parenting plan/residential

schedule is detrimental to the children's physical, mental or emotional health and

the harm likely to be caused by a change in environment is outweighed by the

advantage of a change to the children.

CP at 104. The trial court supported this conclusion with narrative findings and conclusions:

Petitioner Father has met his burden to show that based upon facts that have risen

sic] since the 2008 modification, that a substantial change has occurred in the

circumstances of the children and that the modification is in the best interest of

the children and is necessary to serve their best interest.

The limited psychological information about Ms. Bennett is troubling. She has

refused to provide the full report to the court, but the Guardian ad litem summary

shows a troubled profile on any of the tests given She has used conflict in a

manner that is likely to cause [ long -term] harm to. the children. She has

unilaterally prohibited the children from attending a part of their school

curriculum, namely Thursday morning mass. She has . allowed them to miss an

excessive number of days from school, which I believe is her "silent" protest over

the children attending the parochial school which she originally agreed that they

would attend. She has filed unfounded domestic violence petitions and called the

police for well -child checks for no good reason. Her unilateral decision to [take

NX]" for a non - emergency doctor visit for a second opinion without notice to the

Father is the other abuse.

This passive- aggressive behavior has damaged the children and their relationship

with the father. These two children are the only two at St. Pat's not attending

mass. They are "out of the norm" and for developing children being "out of the

norm" can have [long -term] negative consequences. Ms. Bennett knows how

strongly Mr. Xitco feels about school attendance and she has deliberately allowed
No. 42275 -1 -II

this issue to become a weekly source of contention, in large part I see as her way

to get back at him for his perceived slights towards her.

The emotional gamesmanship needs to end. These children are already using the

parental fight to gain an advantage over their parents. The beach motorcycle

incident is a prime example.

CP at 104 -05.

The trial court accordingly issued a new parenting plan that placed the children with

Bennett from Friday through Monday during school, and with Xitco for the rest of the week

during school. The parenting plan further decreed that Bennett'sresidential time would be

adjusted to end on Sunday ifthe children displayed a pattern of missing school on Mondays.

The plan designated Xitco as the primary residential parent.

The trial court made several more significant findings in the parenting plan. The trial

court found:

Bennett's] involvement or conduct may have an adverse effect on the children's

best interests because of the existence ofthe factors which follow:

The abusive use of conflict by the parent which creates the danger of serious

damage to the children's psychological development, particularly, but not limited

to filing frivolous petitions for protective orders against Father and calling police

against Father for "well -child checks."

Other: Failure to ensure children are to school on time: consistent

pattern of getting children to school late, numerous

absences, and failure to support the school objectives and

mission, particularly withholding the children from school

m]ass which is part of th [sic] curriculum which in turn is

detrimentally affecting the children in the school setting.

CP at 122. The trial court also found:

The evidence has shown that should the father be primary caretaker the conflict

issue will subside, and if the father's parenting plan is adopted he would be

responsible for the school week transportation alleviating the absences and tardies

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No. 42275 -1 -II

that have historically occurred on days mother has visitation, and further

alleviating the social academic problems at school for the children.

CP at 126. Bennett appeals.

ANALYSIS

1. STANDARD OF REVIEW

We review a trial court's decision to modify a parenting plan for abuse of discretion. In

re Marriage ofZigler, 154 Wn. App. 803, 808, 226 P.3d 202 (2010). A court abuses its

discretion if it relies on unsupported facts, if it applies the wrong legal standard, or if its decision

is manifestly unreasonable. Zigler, 154 Wn. App. at 808 -09. We review a trial court'sfindings

of fact regarding modification for substantial evidence, defined as a quantum of evidence

sufficient to persuade a rational fair - minded person the premise is true. In re Marriage ofChua,

149 Wn. App. 147, 154, 202 P.3d 367 (2009); In re Marriage ofAkon, 160 Wn. App. 48, 57, 248

P.3d 94 (2011). We further review whether the findings of fact support the conclusions of law.

In re Marriage ofRockwell, 141 Wn. App. 235, 242,170 P.3d 572 (2007). We review questions

of law de novo. Chua, 149 Wn. App. at 154. We defer to the fact finder on issues of conflicting

testimony, witness credibility, and the persuasiveness of the evidence. In re Parentage ofJ.H.,

112 Wn. App. 486,493 n.l, 49 P.3d 154 (2002).

Because changes in residence are highly disruptive to children, we employ a strong

presumption against modification of a parenting plan. In re Custody ofHalls, 126 Wn. App.

599, 607, 109 P.3d 15 (2005). The moving party bears the burden to show that a modification is

appropriate under RCW 26.60. 09Under that statute,

T]he court shall not modify a prior custody decree or a parenting plan unless it

finds, upon the basis of facts that have arisen since the prior decree or plan, that a

substantial change has occurred in the circumstances of the child or the

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nonmoving party and that the modification is in the best interest of the child and

is necessary to serve the best interests ofthe child.

In applying this standard, the trial court "shall maintain the residential schedule established by

the decree or parenting plan" unless one of four factors is met. RCW 26.60(09. 2). The factor

pertinent to this case is: "The child's present environment is detrimental to the child's physical,

mental, or emotional health and the harm likely to be caused by a change of environment is

outweighed by the advantage of a change to the child.", RCW 26.60( c). 09. 2)(

H. DETRIMENTAL ENVIRONMENT

Bennett argues that the trial court abused its discretion by concluding that the children's

environment was detrimental because (1) the detrimental environment the trial court relied on no

longer existed, (2) the modification did not address the changed circumstances that justified

modification, and (3) the detrimental environment the court found was insufficient to support

modification. We disagree on all points.

A. Detrimental Environment Still Existed

Bennett first contends that the trial court erred by concluding that the children's

environment was detrimental because the detrimental conditions no longer existed at the time of

trial. Bennett claims that (1) the unilateral withdrawal from mass was no longer an issue, and (2)

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the children'sattendance problems were no longer an issue. Bennett's arguments on these

points are premised on rearguing the facts, but substantial evidence supports the trial court's

findings on these issues and Bennett's arguments fail..

As Bennett points out, RCW 26.60( c) 09. 2(requires that the child's present

environment be detrimental to support modification. This court has recognized that although

evidence regarding the children'sprior environment with a parent is relevant under RCW

26.60, 09.the circumstances at the time oftrial are "also probative." In re Marriage of

Ambrose, 67 Wn. App. 103, 108, 834 P.2d 101 (1992). And a trial court errs by not considering

any and all relevant evidence," including the circumstances at the time of trial. Ambrose, 67

Wn. App. at 108 -09. But here, even focusing only on the children's environment at the time of

trial, which is a more restrictive standard than required, substantial evidence supported the trial

court'sfindings of fact regarding their removal from mass and their attendance at school.

1. Unilateral Withdrawalfrom Mass Was Still an Issue

Bennett claims that the issue of mass attendance was "arguably" not an issue at the time

oftrial .4 Br. ofAppellant at 20, 22. But rather.than supporting claim that the issue

3

Bennett also argues in her reply brief that the trial court erred by finding that "the children's

environment," as opposed to the children'spresent environment, was detrimental. Reply Br. of

Appellant at 14. But this technical omission does not show an abuse of discretion. As set forth

below, the trial court'sfindings of fact adequately addressed the children'spresent environment;

the record does not show that the trial court applied the wrong legal standard.

4 Bennett also argues that whether her unilateral withdrawal of the children from mass.

constituted a detriment is "really a matter of law for the court to decide on appeal," but she cites

no law on this point. Br. ofAppellant at 20 -22. We do not address arguments unsupported by

legal authority. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190 n.4, 69

P.3d 895 (2003).

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No. 42275 -1 -II

had been resolved at the time of trial, Bennett simply argues that it was never a problem in the

first place. We disagree.

Bennett argues that her unilateral withdrawal of the children from mass was not

detrimental to the children because it caused them no harm. But there was substantial evidence

to the contrary. Xitco testified that the children were teased. Principal Jordan testified that mass

attendance was an important part of the curriculum and had important benefits for students. She

also testified that no other parents had unilaterally withdrawn their children from mass as

Bennett had done.

The trial court found that failure to attend mass made NX and CX "`out of the norm, "'

which could lead to negative consequences. CP at 104. Substantial evidence supports this

finding. Bennett's argument on this point fails.

2. Absence /Tardiness Issue Still Existed

Bennett also argues that by the time of trial in 2011, the children'sschool attendance had

improved and thus no longer constituted a detriment. We disagree.

Bennett argues that the attendance issues were resolved at the time oftrial because NX's

health had improved. But there was strong evidence that NX's health issues were not the true

cause of the attendance problems. And Bennett could not explain why CX's absences generally

overlapped with NX's. This evidence permits the inference that health issues were not the true

reason for the children'sattendance problems.

Rather, substantial evidence supports the trial court'sfinding that the true cause of the

attendance problems was Bennett's "` silent' protest" over the children attending St. Patrick's.

CP at 104. The evidence showed that Bennett'sdislike of St. Patrick's existed at the time of

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trial. Thus there was evidence that the true reason for the children'sattendance problems was

not resolved. The trial court properly found that the attendance problems were still part ofthe

children'senvironment at the time of trial. Bennett's argument to the contrary fails.

B. Modification Addressed Change in Circumstances

Bennett next argues that, because the attendance issues were resolved by the time oftrial,

the modified parenting plan was not relevant to the changed circumstances justifying the

modification. We disagree.

A parenting plan may not be modified under RCW 26.6009.unless (1) there has been a

substantial change in circumstances, and (2) the modification is in the best interest of the child

and is necessary to serve the best.interest of the child. The basis for Bennett'sargument is that

there were no grounds for modification because the attendance issues had been resolved. But

substantial evidence shows the attendance issues had not been resolved and Bennett's argument

on this point fails.

C. Detrimental Environment Was Sufficient To Support Modification

Bennett additionally argues that the findings of detriment to the children are insufficient

to support modification ofthe parenting plan. Although she cites legal authority, she makes no

reasoned argument that the trial court'sfindings of fact are insufficient to support modification.

Rather, once again, she relies on rearguing the facts. Because substantial evidence supported the

trial court'sfindings of fact, Bennett'sargument on this point fails.

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1. Bennett Failed To Object to Psychological Information

Bennett challenges the trial court'sfinding that "[t]he limited psychological information

about Ms. Bennett is troubling." Br. of Appellant at 28. But because Bennett failed to challenge

the evidence supporting this finding below, we do not consider her argument on this point.

Cathcart reported the limited information at issue, which included a psychologist's

opinion:

There was a significat elevation for compulsive personality style [in Bennett] ....

There were indications that [Bennett] may have limited ability to comfortably

manage interpersonal relationships, [and] may have little interest or expectation of

engaging in collaborative relationships with others . . . . [ Bennett] made

considerable effort to present a self - favorable image, [and] failed to offer a fully

open or candid approach to the testing process.

2 RP at 259 -60. As Bennett points out, the psychologist'sreport was not admitted, and Cathcart

was not a psychologist: Bennett thus seems to argue that the psychological opinion, admitted

through Cathcart, was inadmissible. But Bennett did not object to this evidence at trial. She

cannot raise the admissibility of Cathcart'stestimony on this point for the first time on appeal.

RAP 2. a). 5(Nor does Bennett cite authority related to the evidence's admissibility as required.

Escude v. King County Pub. Hosp. Dist. No. 2,'l17 Wn. App. 183, 190 n.4, 69 P.3d 895 (2003).

Thus, we do not consider Bennett's argument on this point.

2. Bennett'sAbusive Use ofConflict

Bennett next argues that substantial evidence does not support the trial court'sfindings

regarding her abusive use of conflict. We disagree.

A court may preclude or limit any provisions of the parenting plan ifthere is an abusive

use of conflict by the parent that creates the danger of serious damage to the child's

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psychological development. RCW 26. 191( e). 09. 3)(This standard applies in parenting plan

modification cases. In re Marriage of Watson, 132 Wn. App. 222, 232, 130 P.3d 915 (2006).

a. Withdrawalfrom Mass

Bennett claims that her withdrawal ofthe children from mass was not abusive use of

conflict. But rather than make any legal argument on this point, she reargues her earlier claim

that failure to attend mass did not harm the children. Bennett thus appears to be arguing that,

because her actions were not detrimental, they could not constitute abusive use of conflict that

was harmful to the children. This argument fails.

As we analyzed above, there was substantial evidence that the unilateral withdrawal from

mass was detrimental to the children's environment. Bennett's attempt to reargue the facts on

this point is unavailing.

b. Attendance Issues

Bennett next claims that the children's attendance problems were not abusive use of

conflict because they were not detrimental to the children. But there was substantial evidence to

support the trial court'sfindings to the contrary.

The trial court found that the children'spoor school attendance caused them academic

and social problems. The trial court also found that the school attendance was a source of

conflict between the parents because of Xitco'sstrong feelings about school attendance, and

found that this conflict posed a danger of serious psychological damage to the children. The trial

court also found that the children'sattendance issues put them "`out ofthe norm, "' which could

lead to long -term, negative consequences. CP at 104.

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Xitco testified that tardiness harmed the children'svalues by failing to instill in them the

value oftimeliness and that it affected their grades. Principal Jordan testified that attendance

was important because instructional time at school was the most important aspect of the

curriculum and could not be replaced with homework. According to her, tardiness was a

problem because the mornings are the best time for children to learn. Tardiness could also make

a child the "odd man out," often leading to social problems. 2 RP at 200.

Bennett argues that, to the contrary, both children were doing well academically. But

Jordan testified that NX's "attendance and dedication to study outside of school" had affected his

grades. 2 RP at 223. She also testified that after CX's attendance in school had improved, there

was a "positive effect." 2 RP at 224.

There was substantial evidence to support the trial court'sfindings that the attendance

problems were detrimental academically and socially, as well as psychologically, because of the

parental conflict that resulted. Bennett's. argument on this point fails.

c. Domestic Violence Petitions

Bennett further claims that her petitions forviolence protective orders do not - -

show abusive use of conflict. We disagree.

Bennett argues that her first petition could not constitute abusive use of conflict because

she never served it on Xitco and, thus, it never led to any conflict. This argument is unavailing.

Bennett failed to serve the first petition not because she wished to avoid creating conflict with

Xitco, but because she was denied a temporary protective order. At trial, Bennett could provide

only very vague reasons for having filed the petition, strongly supporting the trial court'sfinding

that it was frivolous. Bennett cites no law and makes no reasonable argument that her filing a

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frivolous petition fails to show abusive use of conflict simply because the petition was denied

and she did not serve it. Although such a petition might not show abusive use of conflict in and

of itself, it is certainly relevant.

Bennett further argues that the second petition, related to the porch incident, does not

show abusive use of conflict because the petition was justified under her version of the facts.

But Xitco gave a different version ofthe incident, wherein the only domestic violence was

committed by Bennett. Cathcart was unable to conclude based on the parties' conflicting stories

that any domestic violence had occurred. We defer to the trial court on conflicting evidence and

questions of witness credibility, and the trial court had ample evidence from which to find that

Bennett'ssecond petition was unfounded. When viewed with the other findings, this finding.

properly supported the trial court'sconclusion that Bennett engaged in an abusive use of conflict.

d. Well Child Check

Bennett next challenges the trial court'sfinding of fact that she called the police for well

child checks "for no good reason." CP at 104; Br. of Appellant at 31. But the record shows that

Bennett called the police based only "onaccount of what had happened. She did not -

attempt to contact Xitco about what had happened. There was substantial evidence that Bennett

called the police for "no good reason" under these facts.

5

After arguing that the above facts did not support modification, Bennett claims that there was

no evidence to support the trial court'sfinding that her passive aggressive behavior damaged the

children and their relationship with their father. But Bennett's only argument on this point is to

repeat the factual claims that we addressed above. Because substantial evidence supported the

trial court'sfindings of fact, Bennett's argument on this point fails.

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III. ADVANTAGES OUTWEIGHED HARM

Bennett next argues that the trial court'sfindings of fact do not support its conclusion that

the benefits of modification outweighed the harm to the children. Bennett argues that the trial

court failed to find that (1) the children wanted more time with Xitco or less time with Bennett,

2) her home was unfit or that she was an unfit parent, (3) the modification "was to the advantage

of the children," ( 4) the children were more attached to Xitco than to Bennett or that they would

better "thrive" at Xitco'sresidence, or (5) any specific emotional harm might befall the children

in "being taken from their mother'shome. " Br. of Appellant at 36. Bennett's arguments on this

point are without merit and her claim fails.

A. Desires ofthe Children

Bennett argues that modification was not warranted because neither of the children

wanted additional time with Xitco or less time with her. But Bennett cites no law that the trial

court here was required to issue findings regarding the children'swishes. We do not consider

Bennett's argument on this point. Escude, 117 Wn. App. at. 190 n.4.

B. Unfitness ofBennett'sHome and Parenting

Bennett further argues that there was no evidence that her home was unfit or that she was

an unfit parent. Again, Bennett fails to cite any law that this finding was required. Moreover,

her argument is contrary to case law.

6

Bennett also argues in passing that the evidence showed altercations between NX and Xitco.

Bennett does not explain the relevance of this point within the context of her argument; she

simply mentions the issue as if argument were unnecessary. We do not address issues raised

with only passing treatment and without reasoned argument and do not address Bennett's

argument on this point. Stiles v. Kearney, 168 Wn. App. 250, 266, 277 P.3d 9 (2012), review

denied, 175 Wn.2d 1016 (2012).

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We have held a finding that a parent is unfit is not required to modify a parenting plan

under RCW 26.60. 09In re Marriage ofVelickoff, 95 Wn. App. 346, 353, 968 P.2d 20 (1998).

There is no rule that the trial court here was required to mention "fitness" in order to modify the

parenting plan. The trial court'sconclusion, that the children's environment was detrimental and

that advantages of a change outweighed the harm, was sufficient.

C. Advantage to the Children

Bennett also argues that the trial failed to make any findings as to why the modified

residential schedule was "to the advantage of the children." Br. of Appellant at 36. Although

Bennett does not cite authority on this point, she appears to be arguing that the trial court failed

to make part ofthe finding required under RCW 26.60( c), 09. 2)(that "the harm likely to be

caused by a change of environment is outweighed by the advantage of a change to the child. ,7

But Bennett is incorrect; the trial court found that a change of environment would be to the

advantage of the children.

The trial court found in the modification order that Bennett permitted excessive absence

and tardiness on the children'spart and that she did so as part of her abusive use of conflict,

which was likely to cause long -term harm to the children. And in the new parenting plan, the

trial court found that the basis for restricting Bennett'sresidential time included "abusive use of

conflict... which creates the danger of serious damage to the children'spsychological

7

Bennett cites In re Marriage ofMangiola, 46 Wn. App. 574, 578 -79, 732 P.2d 163 (1987), for

the proposition that modification'isinappropriate when the moving party alleges no facts

tending to show the advantages of a change in custody outweigh the harmful effects of a change

of custody." Br. ofAppellant at 35. But Mangiola addressed a preliminary question not at issue

here: whether a petitioner for a parenting plan modification had shown adequate cause for a

hearing under RCW 26.70. 09The trial court granted Xitco a hearing on modification and

Bennett does not assign error to that decision. Mangiola does not support Bennett's argument.

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development." CP at 122. Also, the trial court found that under the new parenting plan, the

childrens' attendance and tardiness problem would be alleviated because Xitco would now be

mostly responsible for school transportation.

Thus, the trial court found that removing school attendance from Bennett'scontrol would

reduce conflict between the parties, alleviating the affects of the conflict on the children, as well

as alleviating the - effects of the children's absences and tardiness. Bennett is incorrect that the

trial court failed to find that the new residential schedule was to the children'sadvantage.

D. Attachment

Bennett additionally argues that the trial court failed to make any findings that the

children were more attached to Xitco or that they would better "thrive" at Xitco'sresidence. Br.

ofAppellant at 36. Again, Bennett fails to cite authority that such findings were mandatory.

Bennett's argument on this point fails.

E. Emotional Harm ofRelocation

Finally, Bennett argues that the trial court made no findings as to the emotional harm that

might befall the children "in being taken from their mother'shome. " Br. ofAppellant at 36.

Bennett cites no law that such findings were required, but she appears to be arguing that the trial

court failed to make another part of the finding required under RCW 26.60( c), 09. 2)(that "[t]he

child's present environment is detrimental to the child's physical, mental, or emotional health."

Bennett is incorrect.

8

Bennett misrepresents the trial court's order on this point. The children were not "taken" from

her home; they were already residing part time with each parent. The modification order simply

adjusted the residential schedule to give Bennett less residential time during the school year.

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The trial court made several findings regarding the children's emotional health. The trial

court found that Bennett'sbehavior has damaged the children'srelationship with their father. It

found that her pulling them from mass made them "out of the norm." CP at 104. It also found

that her abusive use of conflict created the danger of "serious damage to the children's

psychological development." CP at 122. Bennett's argument on this point is simply contrary to

the record.

Finally, Bennett argues for the first time in her reply brief that the trial court erred by

ordering modification as punishment for her violating the previous parenting plan. We do not

consider issues raised for the first time in a reply brief and therefore do not address this issue. In

re Marriage ofBernard, 165 Wn.2d 895, 908, 204 P.3d 907 (2009).

We hold that the trial court'sfindings supported its conclusion that the advantages of

modification outweighed the harm of a residential change. We accordingly affirm.

A majority ofthe 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

22