### FILED SEPT. 9,2014 In the Office ofthe ClerkofCourt WA StateCourt ofAppeals, Division III
INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inre theParentage of: ) No. 31635-1-III ) Z.B. ) ) Minor Child, ) ) D.B. )**~UBLISHED** OPINION ) Appellant, ) ) and ) ) 

### E.B. ) ) Respondent. ) LAWRENCE-BERREY, 

### J. D.B., a father, appeals the trial court'sparentingplan modification, which he claims reduced his residential time with his son, Z.B. He contends the modification ofthe residential schedule is inconsistentwiththe trial court's fmding thatZ.B. (1) hadbeenintegrated into his father's family and (2) a shared residential schedulehad evolved. Finding noerror, weaffirm.No. 31635-1-III 

### In re Parentage ojz.B.
FACTS D.B. and E.B. are the parents ofZ.B. In 2006, the court awarded E.B., the mother, primary residential placement ofZ.B., who was four years old atthe time. The final residential plan allowed Z.B. to reside with D.B., the father, from Wednesdays at 4:00 p.m. to Saturdays at 10:00 a.m. every other week. Onthe alternate week, Z.B. resided with his father from Wednesday at 4:00 p.m. to Thursday at 4:00 p.m. It is undisputed that during the 2010/2011 school year, the parties beganto deviate from the ordered schedule. The parties disagree as to the exact schedule, butboth agree thatZ.B. was spending approximately one-halfofhis time with his father. The change in schedule was primarily due to his mother's newjob at WendIe Fordthatrequired her to work until 8:00 p.m. several nights perweek. The father's work schedule allowed him to pick up Z.B. from school and keep him at his house until Z.B.'s mother could pick him up about 8:30 p.m. However, in November 2011, afterZ.B. began struggling in school, the parents agreedthat Z.B. should stay overnight with his father when his mother worked until 8:00 p.m. This schedule continued until the fall of2012, when the mother informed Z.B.'s father that her boyfriend would be caring for Z.B. on the nights that she worked.

2No. 31635-1-II1 

### In re Parentage o[ZB.
In September 2012, D.B. petitioned to modifY theparentingplan, contendingthe parties had substantially deviated from the original residential schedule. He claimed that for the previous two years, Z.B. had stayed with him approximately five nights perweek and had been integrated into his family with the mother's consent. The father proposed that he be awarded primary custody and that the mother have the following residential time during the school year: Week 1: Sunday at 8:00 p.m. to Wednesday morning. Week 2: Saturday at 8:00 p.m. to Monday morning. In support ofhis motion, the father submitted a calendar exhibit showingthat Z.B. had stayed with him from September 2, 2011, to September 1,2012. The mother opposed the motion and disputed integration as a basis for modification. She concededthat "adjustments"had been made, butthat these changes did not rise to the level ofa substantial deviation. She maintained that Z.B. spent no more than three overnights perweek with his father and disputed at least nine ofthe overnights in the father's exhibit. A superior court commissioner found adequate cause to proceedto trial, finding Z.B. was spending equal time with bothparents in significant deviation from the original plan. The commissioner discussed the father's exhibit:

3No. 31635-I-III 

### In re Parentage o/Z.E.
Butwhenthe father submits his kind ofhistory ofprecisely what's happened inthe 12 months before filing his petition it seems to indicate well you know some ofthe months there's less thanhalfthe overnights that are spent with dad and some ofthe months there are more thanhalfofthe overnights being spentwith dad.
. .. Assumingthat's accurate this child appears to be spending about halfthe time with each oftheparents.... [T]hatresults in a significant deviation from an original plan of60/40. Clerk'sPapers (CP) at 69. The commissioner orderedthe parties to follow a roughly equal residential schedule that accommodatedthe mother's work schedule. The case proceededto trial. The father testified that he has worked for the United States Post Office for 11 years and has a regular 7:00 a.m. to 2:30 p.m. shift, which leaves him available for Z.B. after school. Hetestified thatbetween September2011 and January 2013, Z.B. stayed withhim approximately one-halfofthetime. He stated that he wantedthe residential schedule modified toreflect this changed schedule and to follow the mother's work schedule. The mother agreed that Z.B. should continueto stay with the father on the nights she works unti18:00 p.m. However, she asked thatZ.B. be allowed to take the bus home after school onthe nights she worked until 5:00p.m. The motherproposed a residential schedule that accommodated her work schedule as follows:

4No. 31635-1-111 In re Parentage oJZ.B.


### Week 1: On Sunday from 10:00 am.-5:30 pm. After school on Monday until the child returns to school Tuesday mornmg; And Friday after school until Saturday at 6:30 pm; 

### Week2: After school on Wednesday until the child returns to school on Friday morning. 

### Week3: After school on Tuesday until the child returns to school Wednesday Morning; And Friday after school until Sunday at 5:30 pm. Resp't'sEx. 100. Thetrial court granted the petition for modification, finding a "substantial change in circumstances has occurred." CP at 96. Specifically, the court found that Z.B. had been integrated into the father's family with the mother's consent in substantial deviation from the original residential schedule. It then citedthe following facts that had arisen since the original decree: Each parent obtained new employment resulting in a change ofthe 2007 schedule. In addition, [Z.B.] began having some issues at school, and the parents cametogether and agreed to adjust the prior schedule. The Court finds thatthe parties have shared parenting responsibilities and both parents have a significant influence on [Z.B.'s] life. As such, it is in his best interests to adoptthe Final Parenting Plan. CP at 96. The court imposedthe following schedule in the final parenting plan:



### 5No. 31635-1-111 

### In re Parentage ojZB.
3.2 School Schedule Upon enrollment in school, the child shall reside with mother, except for the following days and times whenthe child shall reside with or be withthe father: from Friday after school, or 3 pm, to Sunday at 6:30 pm every otherweek. In addition, the child shall reside with the father onthose evenings thatthe mother works until 8 pm or later from after school or 3 pmto the following day, return to school or 9 am. CP at 100. The court notedthat at thetime oftrial, the mother was scheduled to workuntil 8:00 p.m. for 5 out of21 days. The court added that ifthe mother's schedule should change, the father should have as many overnights as contemplated by the schedule. In its oral decision, the courtexplained its decision: [I]n my view, both ofthe parents have exercised a parentingrole. Atthis point, I think to say who is primary otherthan the usual designation of primaryparents onthe odd and evenyears for purposes oftax purposes so they can take thetax exemption, isjustnot here. I will be frank. I am not one ofthese people that gets into a lot of minutia
.... I look at it a little bitmore holistically. Both ofthese parents are exercising significant influence on [Z.B.'s] life at this point. Report ofProceedings (RP) at 290. The court found thatthe parties hadworked together to address Z.B.'sneeds, which resulted in "sharedparenting." RP at 289. It also recognized the existence of
6No. 31635-1-111 In re Parentage ofZ.B.
Z.B.'s other family members, including a half-sister, and stated that Z.B. shouldtake the bus to his mother's house ifshe was offwork by 5:00 p.m., so that he could have time with these other family members. The father filed an objectionto the proposed final parenting plan, arguing thatthe final order did not conform to the commissioner's findings at the adequate causehearing, in which the commissioner ordered a 

### 50/50 schedule. The mother countered that the trial court's decision supersedes the commissioner's ruling. The trial court denied the father's motion. The father appeals. ANALYSIS The issue is whether the trial court abused its discretion in modifYing the parenting plan. Wereview a trial court's decision to modifY a parentingplan for an abuse of discretion. In re Marriage of Zigler, 154 Wn. App. 803, 808,226 P.3d 202 (2010). This broad discretion is due to the trial court's unique opportunity to observe the parties, determine their credibility, and sort out conflicting evidence. In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982). A court abuses its discretion if its decision is manifestly unreasonable orbased on untenable grounds orreasons. In re Marriage of Kovacs, 121 Wn.2d 795,801,854 P.2d 629 (1993). A court's decision is based on untenable reasons "ifit is based on an incorrect standard orthe facts do not meet
7No. 31635-1-II1 

### In re Parentage o/ZB.
the requirements ofthe correct standard." 

### In re Marriage o/Littlefield, 133 Wn.2d 39, 47,940 P.2d 1362 (1997). We review the superior court's findings to determine ifthey are supported by substantial evidence. Substantial evidence is that sufficientto persuade a fair-minded person ofthe finding's truth. 

### City o/Tacomav. 

### William Rogers Co., 148 Wn.2d169, 191, 60 P J d 79 (2002) (quoting

### FredHutchinson CancerResearch Ctr. v. 

### Holman, 107 Wn.2d 693, 712, 732 P.2d 974 (1987)). An appellate courtmay not substitute its evaluation ofthe evidence for thatmade by the trier offact. 

### Goodman v. 

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

### aff'd, 127 Wn.2d 401, 899 P.2d 1265 (1995). "The substantial evidence standard is deferential and requires the appellate courtto view all evidence and inferences in the light most favorable to the prevailingparty." 

### Lewis v. 

### Dep't

## 0/ Licensing, 157 Wn.2d 446, 468, 139 PJd 1078 (2006) (citing 

### State ex reI. Lige & 

### William B. Dickson Co. v. 

### Pierce County, 65 Wn. App. 614, 618,829P.2d 217 (1992)). Because changes in residence are highly disruptive to children, we employ a strong presumption against modification ofa parentingplan. 

### In re Custody

## 0/ Halls, 126 Wn. App. 599,607, 109 P.3d 15 (2005). A two-step process to modifY a parentingplan implements thatpolicy. 

### Zigler, 154 Wn. App. at 809. First, the parent seeking
8No. 31635-1-111 In re Parentage 

### olZ.B.
modification must file an affidavit showing adequate cause. RCW 26.09.270. If adequate cause is shown, the court will then move to the second step: a full hearing. Zigler, 154 Wn. App. at 809. The movingparty must show that "(1) a substantial change occurred in circumstances as they werepreviously known to the court, (2) thepresent arrangement is detrimental to the child'shealth, (3) the modification is in the child'sbest interest, and (4) the change will be more helpful than harmful to the child." Id. (citing RCW 26.09.260(1), (2)(c». The purpose ofthese procedures is to "protect stability by making it more difficultto challenge the status quo." In re Parentage 

### oICMF., 179 Wn.2d 411,419-20,314P.3d 1109 (2013). In applying this standard, the trial court "shall retain the residential schedule established by the decree orparentingplan"unless one offour factors is met. RCW 26.09.260(2). The factor pertinentto this case is: "The child has been integrated into the family ofthepetitioner with the consent ofthe otherparent in substantial deviation from the parentingplan." RCW 26.09.260(2)(b). The father argues that the modified residential schedule is inconsistent with (1) the court's finding that integration and a shared residential schedule had occurred and (2) the commissioner's orderto equally divide the residential schedule between the parents. He maintains the court failed its duty to develop a shared schedule byreducing
9No. 31635-1-III In re Parentage ofZ.B.
his time from the original parentingplan and erred in failing to apply RCW 26.09.187 and RCW 26.09.187(3)(b). The father fails to show how the court abused its discretion in modifying the residential schedule. Contrary to his argument, the court was notboundbythe commissioner's adequate cause findings. An adequate cause hearing simply determines whether the moving party has met the threshold burden ofshowing a substantial change in circumstances to warrant a full hearing onthe petition. In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004). "Theprimarypurpose ofthe threshold adequate
cause requirement is to prevent movants from harassing nonmovants by obtaining a useless hearing." In re Marriage of Adler, 131 Wn. App. 717, 724,129 P.3d 293 (2006). Similar to the commissioner, the court found that the parties had substantially deviated from the original parentingplan to accommodate the mother's work schedule. Accordingly, it modified the parentingplan to follow that schedule, orderingthe parties to divide weekends equally and providing that Z.B. wouldreside with the father on the nights the mother worked until 8:00 p.m. Citing RCW 26.09. 187(3)(b), whichprovides for a child to spend substantially equal intervals oftime with eachparent, the father contends that the court's failure to order a 50/50 division ofresidential time constitutes an abuse ofdiscretion. However, his
10No.31635-I-III In re Parentage oJZ.B.
reliance on this statute is misplaced. Modificationproceedings are governed by RCW 26.09.260, notRCW 26.09.187. RCW 26.09.I87(3)(b) addresses the initial child placement decision and applies to parentingplans calling for frequent moves between households for briefand substantially equal intervals. The court here did not enterthis type ofplan. The requirements ofRCW 26.09.187(3)(b) are thus inapplicable. In the end, the father finds error in the court's failure to order a 

### 50/50 division of residential time. However, the record reflects that in modifying the residential schedule, the court considered the parties' respective work schedules, Z.B.'srelationship with his sister and other family members, and the schedule the parties had maintained for at least
one year before the petition was filed. In doing so, it carefully tailored a schedule that promoted continuity and served the best interest ofZ.B, as required by RCW 26.09.260. It did not abuse its discretion in doing so. The mother asks for attorney fees on appeal under RAP 14.l, RAP 14.2, and RAP 14.3. RAP 14.1, RAP 14.2, and RAP 14.3 authorize an award ofcosts, including statutory attorney fees, to the substantiallyprevailingparty on appeal. The mother is the substantiallyprevailing party in this appeal and is, therefore, entitled to costs as defined in RAP 14.3.

II

### No.**31635~1~III** 

### In re Parentage ojZ.B.
We affinn. A majority ofthe panel has detennined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.**Lawrence~Berrey,** 

### J. WE CONCUR:

Fearing, 

### J.

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