### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Parenting and Support of A.P. DAVID PARSONS , Respondent /Cross Appellant , and TANYA GOODMAN , Appellant /Cross Respondent

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- I DIVISION ONE UNPUBLISHED OPI NION

A PPELWICK , J.

— Tanya Goodman and David Pa rsons, the parents of A.P. , have been involved in protracted conflict since shortly after his birth. The trial court adopted a final parenting plan for A.P. when he was two year s old, following a trial

. Three years later, after another trial, the court modified the
p arenting plan. Finding that the mother had engaged in abusive use of con flict, the court allocated sole decis ion

- making authority to the father as to education and non

- emergency healthcare an d altere d transportation provisions. T he court declined to modify the resident ial schedule and denied the father’s request for attorney fees . Both parties appeal. S ubstantial evidence supports the court’s findings. T he trial court did not misapply the law o r abuse its discretion with respect to the imposition of RCW 26.09.191 restrictions, transportation provisions, or the residential sche dule

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affirm the trial cou rt ’s order and findings on the modification petition and the final parenting plan

. FA CTS In 2015, Parsons filed a parentage action, seeking the adoption of a parenting plan for A.P

. In November 2016, the court entered the final parenting plan following a trial

. That p lan provided for joint decision

- making and a residential schedule that gradually increased A.P.’s residential t ime with Parsons

. When A.P. reached the age of five, the plan set forth a 50/50 resi d ential schedule. Due to the high level of conflict between the parti es, the parenting plan included an alternative dispu te resolu tion process and required use of a parenting coordinator to facilitat e the parties’ communication

. 1 When it adopted the 2016 parenting plan , the court found that Goodman had not always acted in A.P.’s best interests and her conduct had potential to “und ermine” A.P.’s relationship with h is father. Specifical ly, the court found that Goodman had disparaged Parsons, secretly submitted A.P. to a child abuse examination , and instigated an abuse investigation of Parsons without concrete evidence. The court wa rned Good man to refrain from communicating a “pathologized impression” of Parsons. The court stated that the parenting plan should be modified if Goodman continued to act in a manner that created a likelihood of “alienating the child from a parent or of p ushing an adult’s anxieties onto the child.” Goodman appealed and this court affirmed the parenting plan

.

1 The parenting plan provided for mediation , but the court later amended the provision to require arbitration and to allow the parenting coordinato r to resolve “minor” disputes with the right to seek review by the arbitrator.No. 80839

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See In re the Parenting & Support of A.P

. , n oted at 6 Wn. App. 2d 1044, 2018 WL 6787917 (unpublished).
T he c onclusion of the trial and entry of a fi nal permanent parenting plan did not put an end to, or in any way diminish, the conflict between the parents

. A.P.’s diagnosis o f autism spectrum disorder shortly after the trial and issues related to the appropriate treatment following that diagnosis and other health

care issues became major source s of conflict

. Other disputes involved the residential provisions, vacations, telepho nic and “Facet ime ” access, and appropriate preschool programs. Two parenting coordinator s worked intensivel y with the parties

. The parties submitted approximately 20 issues to arbitration. The court found the mother to be in contempt in 2017 and again in 2018 for violating residential provisions of the parenting plan

. 2 The mother also filed an anti

- harassment petitio n ag ainst Parsons’ spouse, Monica Parsons

. 3 The trial court dismissed that petition and imposed sanctions. The first parenting coordinator withdrew from the case after working with the parties for approximately a year. Her final status report stated, in part: Joint decision making is unworkable for this family, fuels conflict and results in delays that are not in [A.P.’s] best interests. In most cases, it

2 Contrary to the mother’s claim, this court did not overturn either finding of contempt based on Goodman’s violation of parenting plan provisions. Instead, the court conclud ed that the finding of contempt based on nine violations of the arbitrator’s ruling on tel ephone access could not be a ba sis for contempt because the ruling had not been confirmed by the court. See In re the Parenting & Support of A.P

. , noted at 9 Wn. App

. 2d 1089 , 2019 WL 3546870 , *5 (unpublished). The court held that Goodman was nonetheless subject to sanctions for violating the ruling under RCW 26.09.184(4). Id. at *8.

3 Because Parsons and his spouse share the same last name, we refer to his spouse a s Monica to avoid confusion.No. 80839

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4 would be fairly easy to reallocate decision to one or the other parent. In this case, assigning a sole de cision maker is complicated by the parents’ radically different perceptions of [A.P.] and their polarization regarding his developmental and medical needs. The parenting coordinator also note d longstanding concerns about the mother’s “persistent negative orientation” toward the father and her “habit of interviewing the child with an eye to allegations of abuse or ne glect

. ” The parenting coordinator recommended that the mother undergo a psych ological eval uation and re commended a re evaluation of the questi on of decision making

. T he father filed a petition to modify the parenting plan. 4 A.P. was five years old at the time of trial on the modification petition in October 2019. T he court appointed experts to conduct a psychological evaluation and a parent ing evaluation. Clinical and forensic psychologist, Dr. Gary Wieder , conducted the parenting evaluation and submitted a 10 4 page report

. Dr. Wieder recommended allocating sole decision

- making authority to the father. After reviewing more than 150 exh ibits and hearing testimony from 12 witnesses over 6 days, the trial court entered a final parenting plan and an order and findings on the petition to modify. The court later granted the mother’s motion for reconsideration, in part, and entered an amended parenting plan and final order and findings. The court found a substantial c ha nge of circumstances and that nonresidential changes to the parenting plan were in the child’s best interest. See RCW 26.09.260(10). The court determined that the mother ha d engaged in the abusive use of conflict

. The court found that the father’s request f or sole

4 The record on appeal does not include Parsons ’ petition

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decision

- making authority was reasonable on that basis and in view of the history of each parent’s participation in decision making. T he plan provides for the fa ther to have sole decision

- making authority as to education al and non

emerge ncy health care issues , with input from the mother

. The co urt also found that the mother had “increased the conflict” during exchanges at the father’s home. To address this, the court adjusted the transportation provisions to require the mother to arrange for third

- party transportation at her expense when exchanges must occur at Parsons’ home. The court declined to reduce the mother’s residential time with A.P. , as requested by the father

. D espite Goodman’s conduct, the court found that the attach ment between A.P. and Parsons remai ned intact, and retained the 50/50 residential schedule

. The court denied the father’s motion for attorney fees

. 5 Both Goodman and Parsons appe al. DISCUSSION
I. Standard of Review We review a tria l court’ s decisions related to the welfare of child ren for an abuse of discretion. In re Marriage of Horner , 151 Wn.2d 884, 89 3, 93 P.3d 124 (2004). Relevant here, a court has authority to modi fy a parenting plan and impose restricti ons under RCW 26.09.191 , to the same extent it has the auth ority to do so at the time of entry of the parenting plan

. In re Marriage of Watson , 132 Wn. App. 222, 2 32, 130 P.3d 915 (2006). We review modifications to a parenting

5 The court did not require the use of a parenting coordinator in the 2019 parenting plan , but required the parties to continue to submit disputes to the same arbitrat or, based on his extensive familiarity with the case

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p lan for an abuse of discretion. In re Marriage of Hansen , 81 Wn. App. 494, 4 98 , 914 P.2d 799 (1996). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage o f Katare , 175 Wn.2d 23, 35 , 283 P.3d 546 (2012). We uphold a trial court’ s findings if sup ported by substantial evidence. In re Marriage of Raskob , 183 Wn. App. 503, 510, 334 P.3d 30 (2014). Substantial evidence exists if the record contains evidence o f a sufficient quantity to persuade a fair

- minded person of the truth of the decl ared premise. Katare , 175 Wn.2d at 3 5

. “Our role or function is not to substitute our judgment for that of the trial court or to weigh the evidence or cre dibility of witness es.” In re Marriage of Rich , 80 Wn. App. 252, 259, 907 P.2d 1234 (1996). The person challenging the findings of fact bears the burden of demonstrating that subst antial evidence does not exist. In re Marriage of Grigsby , 112 Wn. App. 1 , 9 , 57 P.3d 1166 ( 2002). We review de novo whether the trial court’ s findings of fact support its conclusions of law. Raskob , 183 Wn. App. at 5 1 0. II. Goodman’s Appeal
A. Abusive Use of Conflict Goodman claims the court did not apply the same standard to both parties when it f ound that she , and not Parsons, engaged in the abusive use of conflict

. S he argues that the court found abusive use of conflict even though none of her behavior created a “danger of serious damage to the ch ild’s psychological development , ” as required by RCW 26.09.191 (3)(e). O n the other hand, sheNo. 80839

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claims the court “excused” Parsons’ “high conflict behavior that directly involved the child.”
A court may preclude or limit any provision of t he parenting plan if a parent’ s involvement or conduct has “an ad verse effect on the child’ s best interests.” RCW 26.09. 191(3). That statute provides a nonexclusive list of factors that may have an adverse effe ct on the child’ s best interests, including “[t]he abusive use of conflict by the parent which creates the da nger of serious damage to the child ’ s psychological development.” RCW 26.09.191( 3)(e ). A finding of abusive use of conflict does not require actual dama ge. In re Marriage of Burrill , 113 Wn. App. 863, 8 72 , 56 P.3d 993 (2002). “[T]he required showing is that a danger of psychological damage exists.” I d. Here , the court found, in relevant part , 1. The Court finds the mother has engaged in abusive use of conflict. The mother was found in contempt of court on July 28, 2017 and on July 12, 2018 for int entionally withholding the child from the father in violation of the final Parenting Plan. The mother has been sanctioned pursuant to CR 11 for seeking an anti

harassment order against the stepmother in bad faith. The mother filed a motion for contempt a gainst the father which she later withdrew, but only after the father filed a response and incurred attorney fees. The court finds credible the testimony of the stepmother Monica Parsons that: (a) at the child’s occupational therapy appointment, the mothe r blocked her view of the child and then taunted her, and (b) at the child’s medical appointment at Seattle Children’s Hospital, the mother prevented her from attending the appointment and removed the child from her arms. The court finds credible the test imony of the father that: (a) the mother improperly interfered with the child receiving a flu shot and a vaccination for Hepatitis A, (b) the mother violated the November of 2016 final Parenting Plan by taking pictures from the father’s

“ Baby Cam ” located in his house that was ordered to be discontinued, (c) the mother changed the father’s answers on medical intake forms for the child, and (d) the mother’sNo. 80839

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8 inappropriate conduct caused an autism specialist to decline evaluating the child and thus unnecessari ly delayed his autism reevaluation.

. . . 3. The court finds that the father has caused unnecessary conflict with the mother, but that his conduct falls short of abusive use of conflict. For example, the father adds food coloring to the child’s food even though it appears to serve no purpose other than to cause the mother distress. The mother testified credibly that the father can see the school from his home and that he spies on the mother when she drops the child off at school. The mother testifie d credibly that during a difficult child exchange at the father’s house, the father stood behind the front door and surreptitiously audio recorded her rather than assisting with the transfer. The mother testified credibly that during the child’s first day of kindergarten, the father stood

- by video

- recording her the entire time. Substantial evidence in the reco rd supports the court’s finding that all of the identified incidents occurred. We do not agree that the court must have applied the legal s tandar d unequally in order to reach different conclusions about whether the parents’ conduc t amounted to abusive use of conflict

. The court found that Goodman engaged in both different and more extensive conduct than Parsons

. The court concluded that Parson s ’ actions

— using food coloring, watching the mother from his home when she dropped A.P. at school, audio recording the mother from behind a door, and video recording her with A.P. on the first day of kindergarten

— caused unnecessary conflict. But , those actio ns did not involve the child in the parties’ conflict and the court correctly did not find that those acts cre ated a danger of serious damage to A.P.’s psychological development. And , c ontrary to Goodman’s argument, the court expressly found that Parsons’ conduct was inappropriate. The court addressed the misconductNo. 80839

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by ordering the parties not to record each other without consent and directing the father “not to spy” on Goodman at A.P. ’s school. Goodman points out that her acts were not egre gious in co mparison with abusive use of conflict that has occurred in other cases. For example , Goodman cites Burrill , in which the mother engaged in abusive use of conflict by, among other things, raising unfounded allegations of sexual abuse that resulted in the f ather’s arrest and a significant disruption of the parent

- child relationship. Burrill , 1 13 Wn. App. at 867

- 68 . But , the conduct in Burrill was the basis for more

severe restrictions than the court imposed her e. Id. at 868. And , m ore importantly, the fa ct that a court relied on more serious mis conduct to find abusive use of conflict in another case does not establish that the mother’s actions were insufficient to support restrictions under RCW 26.09.191 (3 )

. Goodman claims that A.P. was not involved in o r aware of som e o f her actio ns, such as her legal actions against Monica and Par sons and her confrontation of Monica during A.P.’s therapy session

. So , e ven if these actions fueled conflict between the parties, she asserts that they pose d no danger of

s er ious damage to A.P.’s psychological development. But , Goodman concedes that a child may be psychologically harmed by parental conduct of which the child is unaware. G enerally, courts find abusive use of confl ict where one parent inserts a child into a p arental conflict

. See Burrill , 113 Wn. App. at 868

. And , here, in addition to acts that A.P. was presumably unaware of , the court relied on other acts that directly involved him inNo. 80839

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conflict and created a risk of alienating him from Parson s or eroding hi s parental
trust

. Dr. Wieder concluded that Goodman engaged in the abusive use of conflict. He cited as examples the mother’s actions of obstructing A.P.’s flu shot, her delay of A.P.’s autism reevaluation by accusing the designated provider of extorti on, and the incident at Seattle Children’s Hospital when Goodman took A.P. from Monica’s arms which caused him significant distress. Dr. Wieder explained that Goodman’s overt hostility toward Monica sent harmful “messages” to A.P. and the mother’s att empts to sabotage Monica’ s caretaking were potentially “detrimental” to him. Dr. Wieder determined that the mother exposed A.P. to “unnecessary conflict” and her actions showed “the mother’s needs overriding those of her son and creating the potential det riment” to him. Dr. Wieder also testified that “frivolous litigation is a basis for abusive use of conflict,” and that Goodman’s actions toward Monica showed a willingness to go to “great lengths” in protest of her involvement in ways that are “harmful, a nd distorted, and overreactive.” Dr. Wieder expressed concerns that the mother’ s pervasive negative views of the father and his spouse were not susceptible to change: So my concern is that the distorted views that I believe she has about the father and St epmother could lead her, and likely will lead her, to both provocatively controlling behaviors and potentially overinvolvement behaviors with her child

. The trial court found that Dr. Weider’s testimony was credible.No. 80839

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11 T he evidence in the record is suff icient to persuade a fair

- minded person that Goodman involved the child in th e parties’ conflict creating a danger of serious damage to his psychological development. The refore, the court acted within its discretion by restrict ing the mother’s decision

- ma king authority under RCW 26.09.191(3)

. B. Transportation Provision s Goodman challenges the provision that requires her to arrange for a third

pa rty to transport A.P. to Parson s ’ home. The court adop ted the measure to address conflict during ex changes at th e father’s home : 6. The court finds credible the father’s testimony that the mother’s conduct at his home during child exchanges has increased the conflict. She unnecessarily prolongs the exchanges at his home, causing the child distress. She interferes with the child entering the father’s house if the stepmother answers the door. She called the police to the father’s house to help her with a child exchange even though there was no reason to seek help from law enforcement. Goodman claims the court’ s finding is base d on speculation that she is the cause of A. P.’s resistance to transitions

. But, t he testimony of Parsons, Monica, and Dr. Wieder, and video e vidence suppo rt the court’s finding . There was evidence that Goodman prolonged transitions, ind ulged A.P.’s requests, failed to
encourage him to enter the house when Monica was present , and encouraged A.P. to demand Parsons’ assistance. And , as recounted by the court, on one occasion , the mother sat in her vehicle with A.P. for more than an hour an d then , unnecessarily, summoned police to assist her

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12 T he court made no “implicit finding” about the availability of a third

- party to transport A.P. on Goodman’s behalf. We are not persuaded by Goodman’s speculation that she might be unable to comply w ith the court’s order. C. Other Issues Goodman ch allenges the requirement that A.P. attend school in the district where Parson lives. Sh e claims this decision failed to take into account the traumatic brain injury she suffered in January 2018 which impa c ts her ability to transport A.P. during her r esidential time. H owever, the choice of school issue was not before the court in 2019

. Several months earlier , the ar bitrator resolved the issue after considering input from the parents and the parenting coor dinator

. 6
T he issue of school choice is not properly before us in this a ppeal of the 2019 parenting plan and order and findings on modification

. Goodman also challenges the court’s finding that “Dr. Weider testified credibly that the mother and father ar e incredibly polarized in their be liefs about what is best for the child, and that the father’s views are more aligned with the views of the child’s healthcare providers and educators.” Contrary to Goodman’s argument, s ubstantial evidence in th e record su pports this finding. Dr. Weider testified cons istently with other evidence in the record , that many of the mother’s opinions are “out of sync” with A.P.’s he alth care providers. There was evidence demo nstrating that although A.P. had seen as many a s 30 d octors since the entry of the parenting plan and had been subjected to a wide array of medial and

6 In his brief Parson s asserts that the mother sought review of the arbitrator’s decision in superior court but did not appeal.No. 80839

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developmental exams for someone his age, there was little evidence to substantiate most of the mother’s medical co ncerns. And , there was evidence that the mo ther continued to insist that A.P. suffered from ailments and i njuries in the face of contrary medical evidence

. In its findings and order on modification, t he c ourt ordered the father to

ar range for an autism reevaluation within six months. The mother claims the court erred by entering the parenting plan because , without the results of that evaluation, i t was not possible to know what provisions are in A.P.’s best inter est

. We disagree. I n adopting the parenting plan, the court took into account all of the evidence about A.P.’s needs and deve lopment , including his pending reevaluation. Goodman fails to establish error.
III. Parson s ’ Cross Appeal A. Residential Schedule Parsons claims that , based on the finding of abusive use of conflict, the court sho uld have adopted his proposed resid ential schedule and significantly reduced Goodman’s residential time with A.P. Parson s argues that reducing the mother’s residential time was warranted because the evi dence showed that her alienating behavior s had alread y a ffect ed A.P. 7
A s explained, the court had discretion to place limit ations on Goodman’s involvement , including her residential time, based on its findin g under RCW

7 Pa rsons claims that A.P. has made spontaneous stat ements that sugges t coaching by Goodman. However, he cites an exhibit that was not designated as a part of the record on appeal. T o t he extent that Parsons raised the issue in the parenting evaluation, the ev aluator concluded the allegations could not be verified.No. 80839

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26.09.191(3)(e). But , the court was not required to do so. And , in addition t o the evidence Parsons cites , the court considered other evidence that A.P. was attached to both parents and both have strengths. The court also considered Dr. Wieder’s opinion that notwithstanding the abusive use of conflict, the court should not disturb th e r esidential schedule and doing so would not necessarily reduce the potential impact of alienating behavior

. The court did not abuse its discretion. B. Attorney Fees The court’s initial order provided that Parsons could request attorney fees in a posttrial motion. Parsons apparently filed such a motion, seeking over $35,000 in fees, and the trial court denied it. The court later denied his motion to reconsider that ruling. Parso ns claims he was entitled to fees because Goodman’s “ undying intransigence” necessitated the modification. However, Parsons failed to designate his motion for attorney fees, the trial court’s decision on the motion, or his motion for reconsideration and neither those pleadings nor the court’s order are included in the record on r eview. A determination of intransigence is necessarily factual. In re Marriage of Wixom , 190 Wn. App. 719, 7 25 , 360 P.3d 960 (2015) . Without a record of the arguments raised below and the basis for the court’s ruling, we are unable to review Parsons’ cl aim that the court abused its discretion in denying his request for attorney fees. See In re Marriage of Bobbitt , 135 Wn. App. 8, 29

- 30, 144 P.3d 306 (2006) (this court reviews a motion for attorney fees based on intransigence for an abuse of discretion)

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IV. Attorney Fees on Appeal Parsons seeks an award of attorney fees on appeal, arguing that Goodman’s appeal i s frivolous. But , he cites CR 11 and RCW 4.84.1 85 and neither provides a basis to recover his fees on appeal . We deny the request. 8 Affirmed

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WE CONCUR:

8 A c ommissioner of this court previously denied Goodman’s motion to strike and request for sanctions related to Parsons’ reply brief. To the extent that Parsons’ brief is improperly directed at the issues Goodman raised in her opening brief a nd not limited to a reply to Goodman’s response to the issues he raised in his cross appeal, we disregard the improper arguments. See RAP 10.3(c) (reply brief must be “limited to a response to the issues in the brief to which the reply brief is directed.”)

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