IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE Inthe Matter ofthe Marriage of ) ) NANAKO TSUJIMOTO RASKOB, ) ) Appellant, ) ) and ) ) JOSH IAN RASKOB, ) ) Respondent. ) ) No. 70566-1-1 !»0

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# COURT OF STATE 0 3£



# FILED 

# 'APPEALS 

# F WASHING o

— UNPUBLISHED OPINION FILED: July 21, 2014 Verellen, A.C.J.

—When a parentviolates the relocation provision ofan agreed parenting plan, the trial court has authority to make major modifications to the plan. On remand, the trial court clarified its basis for finding that Nanako Tsujimoto violated the 

### relocation provision of her agreed parenting plan withJosh Raskob.1 Nanako challenges the trial court's findings offact and conclusions of law that she violated the parenting plan. She also argues thatthe trial court erred in modifying the residential schedule and relocation provision inthe parenting plan and in awarding sanctions and attorney fees against her. Because sufficientevidence supports the challenged 

### findings, the trial court's findings support its conclusions of law, the trial court had the statutory authority to modify the parenting plan and award sanctions, and the trial court did not abuse its discretion, we affirm. We decline to award any attorney fees on appeal.


### 1We adoptthe parties' practice ofreferring to themselves bytheirfirst names.No. 70566-1-1/2

FACTS This case is before us for the second time after Nanako's unilateral relocation of 

### thechildrentoSeattle.2 Josh argued thatNanako violated the parenting plan's relocation provision that ifshe moved more than a 30-minute average drive time from 

### his home inBothell, she must give him 60 days' notice bypersonal service or bymail requiring a return receipt. Josh decided that itwas in the best interests ofthe children 

### not to try to force them to move again, so he accepted the relocation as a "faitacompli" but sought adjustments or modifications to the parenting plan. In herprior appeal, Nanako challenged the trial court's determination that she 

### moved more than a 30-minute drive fromJosh's residence, thereby triggering the parenting plan relocation notice requirements. She argued thatthe trialcourt improperly modified the parenting plan and awarded sanctions. We remanded to the trial courtfor clarification ofthe evidence relied upon to determine whether Nanako moved more than

a 30-minute drive time from Josh's residence.3 We also noted that the trial court should 

### take care to comply with the 24-day-per-year modification limit of RCW 26.09.260(5) to the extentthat statute applies to the outcome ofthe remand.4 On remand, the trialjudge, who had since retired but heard the case on a pro 

### tern basis, entered a clarified order on relocation, a clarified parenting plan, and a clarified ordergranting motion for attorney fees/sanctions. Inthe clarified orderon relocation, the trial court explained that itrelied upon Josh's three recorded drive times



### 2Inre Marriage ofRaskob. noted at 172 Wn. App. 1014, 2012 WL5992097, at k1-2. 3 \± at *4. 4 Id.No. 70566-1-1/3 and Nanako's expert's one drive time for an average of about 40 minutes. The trial courtfound that Nanako's relocation constituted a substantial change in circumstances and adjusted the parenting plan to give Josh an additional 24 fulldays ofresidential time. The trial court also adjusted the relocation provision inthe parenting plan to require Nanako to give notice by personal service or mail requiring a return receipt if she moves outside ofthe children's current school attendance boundary. Finally, the trial court ordered Nanako to pay Josh sanctions of$10,500 due to herfailure to follow the law and her intransigence. Nanako appeals. STANDARD OF REVIEW This court reviews trial court decisions dealing with the welfare ofchildren for 

### abuse ofdiscretion.5 A trialcourt abuses its discretion when its decision is "'manifestly 

### unreasonable orbased upon untenable grounds or reasons.'"6 We will reverse a trial court's factual findings only ifthey are unsupported by substantial evidence.7 We review whether the trial court's conclusions of law flow from 

### its findings de novo.8 Unchallenged factual findings are verities on appeal.9

5In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). 

### 6id, (quoting State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)). 7In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). "Substantial evidence exists ifthe record contains evidence of sufficient quantity to 

### persuade a fair-minded, rational person ofthe truth ofthe declared premise." Bering v. Share. 106 Wn.2d 212, 220, 721 P.2d 918 (1986). 8Watson v. Dep'tof Labor &Indus., 133 Wn. App. 903, 909, 138 P.3d 177 (2006).9 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 808, 828 P.2d 549 (1992).No. 70566-1-1/4

DISCUSSION Rules ofAppellate Procedure As a preliminary matter, Josh argues that Nanako complied with RAP 10.3(g) and 10.4(c) only as to the findings that she moved outside the ofthe 30-minute drive time limitand that she was intransigent. He contends that we should not consider any 

### otherfactual challenges. We do not identify any otherfactual challenges by Nanako. Nanako argues Josh fails to support certain factual statements with citations to 

### the record as required by RAP 10.3(a)(6). We detect no violation, but inany event, consideronly facts supported by the record on appeal. Compliance with the Parenting Plan 

### Nanako argues thatthe trialcourterred inconcluding that she violated the 30- minute average drive time relocation requirement inthe parenting plan. We disagree. On remand, the trial court made detailed findings about its determination ofthe
actual drive time: The determination that the move was outside the 30 minute 

### average drive time was made bythe Court because the most credible actual drive-time evidence was provided by the Father and the Mother's 

### expertwitness, Bradley Lincoln. The Mother's computergenerated drive time on which she relied, was problematical and lacked persuasiveness 

### and credibility because itwas not produced as a result ofactual drive times and because much ofit, by its very limitingterms, provided that 

### actual drive times might vary depending on actual highway conditions. 

### See, e.g., the attached TrialExhibit 201 on which the Mother relied at trial as evidence that she had moved within the 30 minute average drive time 

### area. The Mother acknowledged thatthis evidence was not based on 

### actual driving time. RP 45-52. Exhibit 201 also shows thatthe drive time would be "up to 35 minutes intraffic." In addition, the Mother's videos of her actual drive time were confusing. Some ofthe Mother's actual drive times also occurred under abnormal circumstances such as the afternoon 

### ofthe Fourth of July. (RP 370). Further, the mother had never actually driven between her old and new residences to testthe 30 minute averageNo. 70566-1-1/5

drive time limitation before she notified the Father of her intent to move and signed a lease for her new residence. RP 50-53. 

### On the otherhand, the drive times by the Fatherwere when the parties would likelyactually be on the highway with the children. The Father's evidence ofdrive times was 45:19, 36:24 and 41:00. This averages out to be about40 minutes and 54 seconds. This average of 

### over40 minutes of driving time would not reduce to anything close to under 30 minutes or less even after the time the Father took out to purchase gas was subtracted from the times he offered as evidence. In addition, the Mother's expert, Bradley Lincoln, testified his 

### average drive time (which omitted Mondays, when the parties might actually be on the highway) averaged at 30.6 minutes. This is more than the 30 minute average drive lime contained inthe applicable Parenting Plan. The Court's finding thatthe move is beyond the 30 minute average drive time (a provision that was at best a "stretch" for the Fatherto begin with) is supported by the above averaging ofthe credible actual drive time evidence provided by the parties to the Court. The Courttookjudicial notice of some evidence butfound itlacked significant credibility. 

### (Computergenerated information was problematical insofar as much of it did not appearto contemplate actual driving conditions.). Therefore, the 

### average drive time should not be computed by averaging all ofthe drive time evidence. Instead itshould be computed by averaging all ofthe credible actual drive time evidence—which is what the court has done in finding thatthe average drive time was about40 minutes and thatthis 

### exceeded the 30 minute standard established by the parties.1105 The trial court adequately clarified on remand that itused Josh's actual drive times of45:19, 36:24, and 41:00, as well as Lincoln's drive time of30.6 minutes, to 

### arrive at an average of"about40 minutes." This average triggered the parenting plan's relocation notice provisions, which mirror the requirements of RCW 26.09.440. It is undisputed thatthe only notice Josh received was an e-mail from Nanako, sent one month before her move. This e-mail did not comply or even substantially comply with



### 10 Clerk's Papers at 1006-07.No. 70566-1-1/6 

### the applicable relocation notice requirements. Therefore, Nanako violated the parenting plan.11 Nanako makes a series ofarguments that are not persuasive. First, the trial courtwas not required on remand to engage in a more detailed description ofthe data it 

### considered and the computations it utilized. Second, to the extentthere is any inconsistency between the trial court's oral statements regarding the computer generated drive times and the court's clarified findings, the written findings and 

### conclusions control.12 Asclarified, it is clear the trial court rejects the computer information. Third, the trial court considered the written materials submitted by Nanako

on remand, and she provides no authority thatthe parties were entitled to oral argument. Finally, she argues that, inthe absence of a violation, she was required to give only actual notice under RCW 26.09.450(1). But the record supports the trial court's determination that she did violate the parenting plan relocation provisions. Modificationofthe Residential Schedule in the Parenting Plan 

### Nanako argues thatthe trial court abused its discretion in modifying the residential schedule inthe parenting plan. We disagree. RCW 26.09.260(6), an exception to the requirements of RCW 26.09.260(1), allows a trial courtto make a "major" modification to a parenting plan, including an adjustment to the residential schedule "pursuantto a proceeding to permit or restrain a relocation ofthe child": 

### 11 Nanako also argues thatthe trial court should have considered the factors of RCW 26.09.470(2)(a) and (c)-(e) in determining whether she complied with the notice requirements. But she does not explain how she satisfied any ofthose factors. Because claimed errors must be supported by argument, we need not considerthis contention. See RAP 10.3(a)(6). 

### 12 Mairs v. Dep't of Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993).No. 70566-1-1/7 The person objecting to the relocation ofthe child or the relocating person's proposed revised residential schedule may file a petition to 

### modify the parenting plan, including a change ofthe residence in which the child resides the majority ofthe time, without a showing ofadequate cause otherthan the proposed relocation itself. A hearing to determine adequate cause for modification shall not be required so long as the 

### requestfor relocation of the child is being pursued.1131 Therefore, in a relocation case, it is not necessary for the courtto considerwhether 

### there is a substantial change incircumstances otherthan the relocation itself, or to 

### considerthe factors contained in RCW 26.09.260(2).14 Here, Nanako never abandoned her relocation and did, in fact, relocate in 

### violation ofthe parenting plan. Therefore, RCW 26.09.260(6) applies, and the trialcourt
was not required to find some other substantial change incircumstances or considerthe factors of RCW 26.09.260(2). The trial court did not abuse its discretion in modifying the residential schedule under these circumstances. 

### Nanako argues that modification of the parenting plan is improper because Josh did not request additional time withthe children when he objected to her relocation. But 

### she provides no compelling authority forsuch a requirement. The plainlanguage of RCW 26.09.260(6) states that the court "may order adjustments to the residential 

### aspects of a parenting plan pursuantto a proceeding to permit or restrain a relocation of the child." Because the modification was made pursuantto a proceeding to restrain Nanako's relocation, her argumentfails. 

### Nanako also argues that RCW26.09.260(6) does not apply because Josh abandoned his objection to relocation and, therefore, the trial court was required to make an adequate cause determination. Josh decided that itwas inthe best interests 13 RCW 26.09.260(6). 14 In re Marriage ofGrigsbv, 112 Wn. App. 1, 15, 57 P.3d 1166 (2002).

7No. 70566-1-1/8 

### of the children not to try to force them to move again, so he accepted the relocation as a "faitacompli" while seeking adjustments or modifications to the parenting plan based upon Nanako's violation. Nanako's argumentthatJosh waived the ability to obtain such 

### reliefbecause he agreed to the move afterthe fact is not persuasive. Josh did not forgo any remedies based upon Nanako's violations ofthe parenting plan. Nanako argues thatthe modification to the residential schedule was improper 

### because the requirements of RCW 26.09.260(2) and (5) are not met.15 While itdoes appearfrom the trial court's orderon relocation that itintended the revised parenting plan to satisfy the requirements of RCW 26.09.260(5), we may affirm on any basis 

### supported by the record.16 We conclude that RCW 26.09.260(2) and (5) do not apply because, as explained above, modificationwas proper under RCW26.09.260(6).17 Finally, Nanako objects to the modification, contending that itwas only done to sanction her and did not consider the children's best interests. The trial court's order does contain language to the effectthat itmodified the parenting plan to compensate Josh. But italso ruled that "[i]t is in the best interest ofthe children to adjust the original



### 15 Nanako argues that RCW26.09.260(5) is not satisfied because the modification exceeds the 24-day limitand changes the residence where the children are scheduled to reside a majority ofthe time. Intheir respective briefs, Nanako and Josh include differing calculations ofthe total number ofdays awarded to each inthe three different parenting plans entered by the trial court. Because RCW 26.09.260(6) does 

### not require us to determine whetherthe number ofdays awarded, as modified, exceed a statutory limitation, we do not address whetherthe parties' calculations are correct. 

### 16 MHM&F, LLC v. Prvor, 168 Wn. App. 451, 461, 277 P.3d 62 (2012). 17 Unlike RCW 26.09.260(5), section (6) does allow a trial courtto change the residence inwhich the children reside the majority ofthe time and does not include a limitation on the number of days changed.No. 70566-1-1/9 

### Parenting Plan inorderto tryand make itmore workable and less problematic."18 Nanako's argumentfails. 

### Modification ofthe Relocation Provision ofthe Parenting Plan Nanako argues thatthe trial court erred by altering the parenting plan's relocation provision. We disagree. RCW 26.09.260(10) permits a trial courtto "orderadjustments to any ofthe nonresidential aspects of a parenting plan upon a showing of a substantial change of circumstances ofeither parent or of a child, and the adjustment is inthe best interest of the child." This section expressly relieves a trial courtfrom addressing the considerations listed in RCW 26.09.260(2). Here, the trial court replaced the 30-minute average drive time provision inthe parenting plan with the following language: Ifthe move is outside the child's current school district (I.e., the John Stanford International School attendance area boundary in Seattle, Washington) the relocating person must give notice by personal service or 

### by mail requiring a return receipt.'191 In its clarified order on relocation, the trial courtfound that Nanako's decision to relocate 

### and her relocation outside the 30-minute average drive time agreed to inthe original 

### parenting plan "constitute[d] a substantial change incircumstances not inthe contemplation ofthe parties when the original Parenting Plan was agreed to and entered."20 Italso found that "[i]t is inthe best interest ofthe children to adjustthe 

### original Parenting Plan inorderto try and make itmore workable and less

18 Clerk's Papers at 1008. 19jd, at 1033. 20 Id. at 1006.No. 70566-1-1/10 

### problematic."21 Becausethe trial court made the necessaryfindings in altering the relocation provisions, it did not abuse its discretion. Nanako claims that the trial court's actions constituted a limitation or restriction within the meaning ofRCW 26.09.191, requiring it to adhere to that statute's requirements. But the trial court expressly stated in its orderthat "the Motherwho is entitled to residential time with the children is not subjectto limitations under RCW 26.09.191."22 Nanako characterizes the adjustment ofthe relocation provision as a "geographic 

### limitation," citing Inre Marriage ofKatare.23 Butunlike Katare, whichinvolved a restriction preventing the fatherfrom traveling with his children outside ofthe United States, no similar restriction has been placed on Nanako's ability to move. Rather, the 

### provision simply requires Nanako to provide Josh with statutory notice should she decide to relocate outside ofJohn Stanford's boundaries. 

### Finally, Nanako argues thatthe trial court impermissibly altered the meaning of "school district" underthe Child Relocation Act by requiring herto give Josh statutory notice even ifshe moves within the Seattle School District but outside John Stanford's 

### boundaries. Generally, a parentwho moves within the same school district is only 

### required to give actual notice.24 But Nanako has cited no authority precluding the court

21 jd at 1008. 22 id, at 1004. 23 125 Wn. App. 813, 105 P.3d 44 (2004). 24 RCW 26.09.450.

10No. 70566-1-1/11 

### from requiring more notice.25 At dissolution, the parties negotiated a specific relocation provision to fittheir circumstances. Nanako has failed to show that the trial court, in 

### attempting to preventfuture disputes, was prohibited from altering the parties' negotiated provision to betterfitthe changed circumstances. Trial Court Award ofAttorney Fees and Sanctions Nanako argues thatthe trial court abused its discretion by assessing sanctions against her and awarding Josh a portion of his attorney fees. We disagree. Under RCW 26.09.470(1), "[t]he failure to provide the required notice is grounds for sanctions." Additionally, a trial court may considerwhether additional legal fees


### were caused byone party's intransigence and award attorney fees on that basis.26 

### "Intransigence is the quality or state of being uncompromising."27 "Awards of attorney fees based upon the intransigence ofone party have been granted when the party engaged in 'foot-dragging' and 'obstruction'... or simply when one party made the trial 

### undulydifficult and increased legal costs by his or her actions."28 Here, the trial court assessed monetary sanctions of$10,000 inattorneyfees 

### and $500 incosts against Nanako.29 Insupportofthese sanctions, the trial court entered the following findings:

25 See DeHeerv. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 

### (1962) ("Where no authorities are cited insupport of a proposition, the court is not required to search out authorities, but may assume that counsel, afterdiligent search, has found none."). 

### 26 Inre Marriage ofGreenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). 27 Schumacherv.Watson, 100Wn. App. 208, 216, 997 P.2d 399 (2000) (citing Webster's Third New International Dictionary 1186 (1993)). 

### 28 Greenlee, 65 Wn. App. 708 (quoting Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969)). 

### 29 Clerk's Papers at 990.

11No. 70566-1-1/12 

### 1. Petitioner relocated withthe parties' children without complying, or even substantially complying with the statutory relocation notice requirement. 2. Petitioner's failure to follow the law was consistentwith her rigid attitude toward parenting issues and her difficulty in reasonably communicating with respondent regarding the parenting ofthe parties' children-as described in the Courts Order re Relocation, which is incorporated by this reference into this Order. 3. Petitioners' failure to follow the law, and her intransigence, created a fait accompli and status quo that made a denial ofthe relocation, howevertechnically merited, contrary to the best interests of the children and would punish the children for the errors ofthe petitioner. Respondent recognized this and consented to the relocation. 4. Respondent is entitled to sanctions arising out ofthe petitioner's actions. The sanctions should include both monetary sanctions and a 

### practical adjustment ofthe Parenting Plan to compensate the Father, however inadequately, for the added parenting inconvenience caused by 

### the petitioner's unilateral relocation with the children and the resulting 

### legal proceedings and related expense.1301 Because Nanako failed to comply withthe notice requirements for relocation as outlined 

### inthe parenting plan, the trial court did not abuse itsdiscretion inawarding sanctions. Nanako challenges the trialcourt's finding 3 above that she was intransigent. But she does not challenge finding 4, a verity on appeal, that her unilateral relocation resulted in legal proceedings and expense, conductwithinthe definition of 

### intransigence. Furthermore, the relocation order, whichwas incorporated byreference 

### into the orderassessing sanctions, isconsistentwith thisfinding.31 In section 2.6, the trial court made the following unchallenged finding about how Nanako's actions made the trial more difficult:



### 30 id at 991-92. 31 See id. at 991.

12No. 70566-1-1/13 The Mother's relocation "notice". . . failed to provide the Fatherwith important relevant information such as the reasons for the move, the children's new school and a proposed new parenting plan. Ifthis information had been timely provided to the Father, itmight have eliminated or reduced the litigation thatfollowed the notice and itmight have allowed the parties to try and resolve their differences through the dispute resolution orparenting facility/coach processes already contained intheir Parenting Plan. Because ofthe Mother's unilateral and statutorily inadequate action, one willnever know ifavailable alternate and less 

### expensive means of resolving this matter might have been successful.'321 Nanako's failure to abide by the notice requirements for relocation made the 

### proceedings more difficultand, arguably, increased Josh's legal fees. An award of sanctions and attorney fees was within the trial court's discretion. Nanako argues thatthe award ofsanctions and attorney fees was improper 

### because itconflicts withthe trial court's oral rulingthat she did not act inbad faith. But 

### bad faith and intransigence are not necessarily synonymous. Further, an oral decision ofthe trial courtwhich is inconsistentwith its written findings and conclusions may not 

### be used to impeach such findings.33 Nanako also argues thatthe trial court abused itsdiscretion infailing to award her attorney fees based upon her financial need and the frivolous nature ofJosh's claims. While the evidence at trial indicated that Nanako has limited financial 

### resources, Josh is in no betterfinancial position, owing his parents nearly $200,000. Nanako contends that Josh's claims were frivolous because he abandoned his objection to the relocation after itoccurred. But as the trial court noted, Josh did not abandon his 32 lU at 1007. 

### 33 Mairs, 70 Wn. App. at 545. Nanako cites Miles v. Miles, 128 Wn. App. 64, 71, 114 P.3d 671 (2005), forthe proposition that it is appropriate to consider an oral decision where laterwritten findings are inapposite. But inthat case, the appellate court looked to the oral decision because thejudge who signed the written findings did not 

### hearthe evidence presented and the written findings did not findsupport in the 

### transcript of the oral ruling, id. at 70 n.5. That narrow situation does not apply here.

13No. 70566-1-1/14 

### otherconcerns surrounding the impactofNanako's relocation on Josh's parental rights. Because Josh's claims were not frivolous, Nanako has not shown that the trial court abused its discretion by denying her attorney fee request. Attorney Fees on Appeal Both Nanako and Josh claim entitlementto fees on appeal. Under RAP 18.1, we 

### may award attorney fees ifauthorized by applicable law. RCW 26.09.140 provides for attorney fees on appeal. Inexercising discretion underthis statute, we considerthe 

### arguable merit of the issues on appeal and the parties' financial resources.34 A party 

### musttimelyfile a financial declaration for his or her resources to be considered.35 Josh filed a financial declaration with this court that indicates financial need. But under all ofthe circumstances, we decline to award him attorney fees on appeal. Nanako has not filed a financial declaration with this court. We decline to award her attorney fees on appeal.
Affirmed.

WE CONCUR: 

# ^Ia^jl,-^

34 Inre Marriage ofC.M.C.. 87 Wn. App. 84, 89, 940 P.2d 669 (1997). 

### 35 RAP 18.1(c).

14