### FILED April 30, 2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inre the Marriage of: ) ) NORMAN D. LESLIE, ) No. 30160-5-III ) Respondent, ) ) and ) ) JANELLE L. LESLIE, ) ) UNPUBLISHED OPINION Appellant. )
SIDDOWA Y, J.

- Janelle Leslie, now Janelle Belton, appeals the residential placement anddecision making provisions ofthe parentingplan entered for her son with NormanLeslie. She argues thatthe final orderofchild support must be reversed as well. We find no abuse ofdiscretion by the trial court and affirm. FACTS AND PROCEDURAL BACKGROUND Janelle Belton and NormanLeslie attendedDeerParkHigh School together inthe 1980s. Following graduationthey had no contactunti12007, when Ms. Beltonrenewed communication and the two had several long conversations. In July 2008, they spent a weektogetherinMinneapolis, afterwhich the pairreturnedto Newport, Washington, as aNo. 30160-5-111 

### In re Marriage of Leslie couple. Unbeknownst to Mr. Leslie, Ms. Belton was already married. Atthe time of theirtrip to Minneapolis, she had liedtoher husband, Randy Hitchcock, about going to Minneapolis on business. Mr. Leslie and Ms. Beltonwere married in September 2008. They had a son, Dennis, I born in February 2010. Five months later they separated, after

### Mr. Leslie learned ofher marriage toMr. Hitchcock. Mr. Leslie filed suitto have the marriage declared invalid. Attorney Rebecca M. Coufal was appointed guardian ad litem for Dennis. In November 2010, she filed her initial report. Itindicated that Ms. Belton had been Dennis'sprimary caregiverup until the time ofthe separation and that atthe time ofthe report, Mr. Leslie was the primary caregiver, although Dennis was cared for by Ms. Belton orbaby-sitters when

### Mr. Leslie worked. The report recounted an unusual history ofmisrepresentation by Ms. Beltonthat Ms. Coufal characterized as complicatingthe case. Among other misrepresentations, Ms. Belton had falsely told several employers and others that she was a registered nurse; had incurred substantial debt in both marriages withoutthe knowledge ofher husbands; and had a history ofseeking medical help for herselfand for Dennis, for undiagnosable problems thatno one else had noticed. At one point Ms. Belton arguably put Dennis in

I We use a pseudonym for the child's name, consistentwith our General Court Order dealing with the use ofchildren's names in opinions, orders, and rulings. 2No.30160-S-III In re Marriage of Leslie danger when he had sustained a fractured skull, been seen at Harborview Medical Center, and was released into her care based on herrepresentation that she was a nurse. Despite these problems, Ms. Coufal concluded that Ms. Belton loved Dennis and her two other, older children. She recounted in her report thatMs. Belton's oldest child-ason-told Ms. Coufal that his mother "is a caringparent who will do anything for her children." Clerk's Papers (CP) at 4. Even he said thathis mother needed to get her personal life together, however, and expressed concern about Ms. Belton being the primary caregiver ofhis younger halfsister and Dennis. Ms. Coufal reported thather interviews suggestedthat Mr. Leslie could be unduly rigid. Several persons whom Ms. Belton suggested be contacted, including herparents, described Mr. Leslie as arrogant and having a drinkingproblem. Ms. Beltontold Ms. Coufal ofthree incidents, which ifaccurate, would qualify as domestic violence. Evidently the only incident confirmed by Mr. Leslie was that he broke the windshield of
a car when Ms. Belton-inthe car-refusedto relinquish a credit cardto him. Considering all, Ms. Coufal's recommendation was thatMr. Leslie be appointed the primary residential parent and be given sole authority over Dennis's health care. She recommended that restrictions be imposed on where Ms. Belton could take Dennis. Otherwise, Ms. Coufal recommended "afairly standardparenting plan." CP at 6. The matter was tried the following spring, in a two-day triaL Bothparties testified
as did the guardian ad litem and three other witnesses. Atthe conclusion oftrial, the 

### 3No. 30160-5-II1 

### In re Marriage of Leslie

court declared the marriage invalid and entered findings offact and conclusions oflaw and a final parenting plan, designating Mr. Leslie as theprimary residential parent and imposing restrictions onMs. Belton's decision making authority and residential time. It entered a final order ofchild support requiringpayments by Ms. Belton of$269 per month. Ms. Belton appeals. ANALYSIS Ms. Belton appeals the trial court's primary residential placement ofDennis with his father, its restrictions onher authority and residential time, and its orderthat Ms. Beltonpay child support.2 We address the issues in tum. I Washington statutes contemplate thatparentingplans for divorced or separated parents will provide for mutual decision making authority unless there are reasons notto provide for mutual authority, such as the reasonable opposition by one parent, geographic distance affecting theparents' ability to make timely mutual decisions, or a statutory mandate that oneparent's decision making authority berestricted. 

### See RCW

2 Ms. Belton'sreply argues that Mr. Leslie'sresponse briefviolates RAP 10.3(a)(5) by failing to support many ofits factual statements by any citation tothe record. Nearly every fact stated in the briefhas a corresponding cite to the record. Any failure to provide citations is minor and has not impaired our ability to decide the issues raised by the appeal. 

### CfHarbor Enters., Inc v. 

### Gudjonsson, 116 Wn.2d 283, 803 P.2d 798 (1991) (ninepages ofasserted facts urged as substantial evidence to supportthe court's findings butwith no citations to the record violated the rule). 

### 4No. 30160-5-111 In re Marriage of Leslie 26.09.187(2). The**circu~stances** under which a parent's decision making authority must be restricted-physical, sexual, or apattern ofemotional abuse ofa child, for exampleare set forth in RCW 26.09.191(1). Subsection (3) ofRCW 26.09.191 identifies other parental shortcomings that 

### "may have an adverse effect on the child's best interests." (Emphasis added.) With respectto these shortcomings, the trial court is given discretion to rely upon them topreclude or limit any provision ofthe parenting plan. Six shortcomings are identified specifically at RCW 26.09. 191(3)(a)-(f); RCW 26.09.191(3)(g) also authorizes the trial court to rely on "[s]uch other factors or conduct as the court expressly finds adverse to the best interests ofthe child." The final parenting plan entered below found such a factor present in the case of Ms. Belton. Itprovides: The mother's involvement orconduct may have an adverse effect on the child's best interests because ofthe existence ofthe factors which follow: A long-term and persistentpattern ofdishonesty, fraudulent actions, financial exploitation and other such misconductwhich not only operates as apoorparental example but whichhas also endangered this child's health on at least one occasion. Specifically, the mother fraudulently heldherself out as a registered nurse when she had not completed even high school, and when the child suffered a fractured skull she removed the child from the hospital, representing that she could monitorhis recovery, when she had neither the experience orthe knowledge ofwhat to observe. Additionally, the mother married the father when she had a prior undissolved marriage. She financially exploited both ofthese husbands. She has fabricated medical problems to get attention and sympathy. She has an ability to make a very "personable" first impression which is used, however, to 5No. 30160-5-111 In re Marriage of Leslie manipulate others and getwhat she wants, without regard to whether it would be in the best interests ofthe child. CP at 26. Ms. Belton challenges this restriction, focusing on what she claims is the absence ofa required nexus between her history and the adverse effect on Dennis that concerned the trial court. The requirement ofa "nexus" was first discussed in In re Marriage of Watson, 132 Wn. App. 222, 234, 130 P.3d 915 (2006) (stating that "[i]n the absence of substantial evidence establishing a nexus" between a restricted parent's conduct and the adverse effectthat concerns the court, a trial court errs in imposing restrictions). She also emphasizes the initial report filed by Ms. Coufal rather than the evidence presented at the two-day trial. In matters dealing with the welfare ofchildren, trial courts are given broad discretion. In re Marriage of Cabal quinto, 100 Wn.2d 325,327,669 P.2d 886 (1983). The court's discretion mustbe guided by the provisions ofthe Parenting Act of 1987, chapter 26.09 RCW. In re Marriage of Katare, 175 Wn.2d 23,36,283 P.3d 546 (2012), cert. denied, 133 S. Ct. 889 (2013). An appellate court may not substitute its findings for the trial court's with respect to placement ofchildren when ample evidence supports the trial court's determination. In re Marriage of Kovacs, 121 Wn.2d 795, 810, 854 P.2d 629 (1993) (citing Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183 (1959)).


### 6No. 30160-5-III In re Marriage of Leslie
In fashioning apermanentparenting plan, the trial court seeks to maintain the child's emotional stability, to clearly establish the parents' responsibilities, and to minimize the child's exposureto harmful parental conflict. RCW 26.09. 184(1)(b), (d), (e). Each case must be decided on its own facts, as every child is different. In re Marriage of Jensen-Branch, 78 Wn. App. 482, 491,899 P.2d 803 (1995). The primary
concern ofthe courts in custody matters is always the welfare ofthe child. In re Rankin, 76 Wn.2d 533,537,458P.2d 176 (1969). Restrictions onparental involvement are warranted when substantial evidence demonstrates that a restrictive factor makes unrestricted involvement or conductwith the children likely to adversely affect them. Watson, 132 Wn. App. at 233. Findings of actual or potential harm must be made with reference to specific evidence "as opposed to general findings ofharm which leave an appellate court searching the record for evidence that mayor may not have been seen as pivotal or relevant by the trial court." JensenBranch, 78 Wn. App. at 491-92. However, a trial court does not need to wait for actual harm to occurbefore imposing restrictions on visitation. In re Marriage of Burrill, 113 Wn. App. 863,872, 56 P.3d 993 (2002). "Rather, the required showing is that a danger of
... damage exists." Id. InIn re Marriage ofWicklund, 84 Wn. App. 763, 932 P.2d 652 (1996) and Watson, the appellate courts overturned restrictions imposed on the authority ofRCW 26.09.191 for lack oftherequired nexus. In Wicklund, the trial courtrestricted the ability 7No. 30160-5-111 In re Marriage of Leslie
ofthe father, a gay man, to display affectiontoward his partner in front ofhis children because the childrenwere having difficulty adjusting to his homosexuality. 84 Wn. App. at 769. The Court ofAppeals reversed thetrial court, holdingthat the restrictions were
an abuse ofdiscretion because "[p]roblems with adjustment are the normal response to any breakup ofa family
.... Ifthe problem is adjustment, the remedy is counseling." Id. at 771.In Watson, the trial court imposed restrictions on a father's visitation time based solely onthe mother's allegation that he had abused theirdaughter, an allegation that the trial court found was not proved. The Court ofAppeals reversed the trial court because "theunproven allegation ofsexual abuse [did] not provide substantial evidence in support ofthe visitation restrictions" and the remaining evidence weighed in favor ofthe father. Watson, 132 Wn. App. at 233. Addressing both Wicklund and Watson, the Washington Supreme Court'srecent decision in Katare found that Wicklund and Watson do not require that a harm be "likely" before visitation can be limited. Rather, "restrictions cannot be imposed for unfounded reasons." Katare, 175 Wn.2d at 37. Ms. Belton contends restrictions on her decision making and residential schedule
were improperly imposed because the trial court's finding amounts to only a "suggestion ofadversity" that is "equivocal atbest." Br. ofAppellant at (unnumbered) 12 (emphasis

8No.30160-5-III In re Marriage of Leslie omitted). She further argues that by stating only thather conduct '''may' [have] 'an adverse effect'" the finding does not satisfy the requirementthat it be '"express,''' 

### Id. Addressing the latter point first, the trial court's finding thatthe conduct "may have an adverse effect" directly tracks the language ofRCW26.09.191(3). Given the introductory language ofthe subsection, a finding by the trial court that a factor or conduct "may have an adverse effect on the child's best interests" is equivalentto a finding that the factor or conduct is "adverse to the best interests ofthe child." Otherwise, a factor or conduct under (g) would have to present more danger than any of the other factors or conduct under subsection (3). The requirement thatthe trial court "expressly find" the factor to be adverse to the child's best interests is satisfied where it sets forth the factor in express terms in the parenting plan, available for ourreview. The trial court made an express finding here. The trial court's restriction was not imposed for an unfoundedreason. The mother's long-term pattern andpersistentpattern ofdishonesty, fraudulent actions, and financial exploitationprovide a foundation for the trial court's conclusion that she is a poorparental example and is likely to endanger Dennis's emotional well being and psychological development as timepasses, even ifhe has not yet experienced the full effects that concerned the court. He was, after all, only 15 months old at the time oftrial and had been under his mother's primary care for only the first 5Y2 months ofhis life. The concerns for Dennis'swell-being were borne out once already, when Ms. Belton 

### 9

### No.30l60-5-III In re Marriage of Leslie
removed him from the hospital where he was being treated for a fractured skull by falsely representing that she was qualified to monitor his recovery. Ms. Coufal testified that it
was hard to trust Ms. Belton "because ofthe things she has said in the pastthat are blatant**lies.~~** Report ofProceedings (RP) at 

### 22. Ms.**Belton~s** older son expressed reservations about her having primary care ofhis half-siblings. That evidence and the evidence ofproblems and burdens that Ms. Belton had left in her wake in prior years (significant financialexploitation oftwo husbands, broken relationships, lost employment based on misrepresentations, and unwarranted concern and medical expense inflicted on others by herhypochondriasis or attention-seeking behavior) sufficed. Ms. Belton insists that Mr. Leslie's account ofthe parties' marriage and conduct
was rife with inaccuracies and lies. This court cannotretry the facts on appeal, and will deferto the trier offact for purposes ofresolving conflicting testimony and evaluating the persuasiveness ofthe evidence and credibility ofthe witnesses. Burrill, 113 Wn. App. at 868. The trial court found Mr. Leslie and his witnesses tobe credible. Afterhearing from all ofthe witnesses, the trial court observed, "This testimony that 

### I heard about Ms. [Belton] and her actions overthe course ofyears, was a mind boggIer. I'verarely met
someone who was so...described as so dishonest and manipulative." RP at

### 420 (second alteration in original). Substantial evidence supportedthe trial court's finding ofa factor warranting restrictions on Ms. Belton under the parenting plan. 10No.30l60-5-II1 In re Marriage of Leslie
II Ms. Belton next asserts that the trial court committed reversible error and abused its discretion by allocating decision making and residential time without examining required statutory factors and making specific.findings offact as to each. We first address the trial court's allocation ofdecision making authority. RCW 26.09. 187(2)(b) requires that a trial court order sole decision making when it finds that (1) a limitation on the otherparent's decision making is mandated by RCW26.09.191; (2) bothparents are opposed to mutual decision making; or (3) one parent is opposed to mutual decision making, and the opposition is reasonably based oncriteria set forth in the statute. The trial court explained its award ofsole decision making authority to Mr. Leslie
as follows: One parent is opposed to mutual decision making, and such opposition is reasonably based on the following criteria: (a) The existence ofalimitationunder RCW 26.09.191
... (b) The history ofparticipation ofeach parent in decision making in each ofthe areas in RCW26.09.184(4)(a) (here, mother has abused her unilateral decision-making in the past, endangering the child); and (c) Whetherthe parents have demonstrated ability and desire to cooperate with one another in decision making in each ofthe areas in RCW 26.09. 184(4)(a) (the father cannot trustthe motherto make decisions that are based uponthe child's best interests because ofher inability to be honest with him and with others).

11No. 30160·5·111 In re Marriage of Leslie
CP at 31.3 Ms. Belton first argues that the court's error in finding a basis for restriction under RCW 26.09.191 carries over to create error here as well. We have already rejected that argument. She alternatively argues thatthe record does not supportthe statutory criteria that the courtrelied upon as making Mr. Leslie's opposition to mutual decision making reasonable. According to her, no evidence suggests that she "'abusedherunilateral decision making in the past''' (recognized as a reasonable basis for sole decision making by RCW 26.09.187(2)(b)(ii)) or "'failedto demonstrate her ability or desire to cooperate in the decision-making process'" with Mr. Leslie (recognized as a reasonable basis by RCW 26.09. 

### 187(2)(b)(iii)). Br. ofAppellant at (unnumbered) 14. Mr. Leslie's testimony, together with the evidence ofMs. Belton's decision to
remove Dennis prematurely from the hospital following his skull fracture, provide support for the criteria found by the trial court. Mr. Leslie testified that he wanted decision making for himself. He went on to discuss his difficulties in tryingto co-parent with Ms. Belton, his concern about her decision making ability, and her inability to be honest. While Ms. Belton disagrees, we deferto the trial courtto resolve conflicting

3 In citingthe criteriathat made Mr. Leslie's opposition to mutual decision making reasonable, the court's finding refers, in error, to RCW 26.09.184(4)(a). Its narrative makes it clearthat it was relying on RCW 26.09.187(2)(b)(ii) and (b)(iii). 12No.30160-5-III 

### In re Marriage of Leslie testimony by evaluatingthe persuasiveness ofthe evidence and credibility ofthe witnesses. Substantial evidence established the statutory criteria for sole decision making relied upon by the court.. Turning to the residential provisions ofthe parentingplan, RCW 26.09.187(3) sets out seven factors that ordinarily are to guide the allocation ofparents' residential time.4 Thetrial court did not address the factors in the parenting plan or speak specifically to them in its oral decision. Ms. Belton argues thatthis is reversible error. Mr. Leslie responds thatthe trial court's consideration ofthe seven factors was made unnecessary by its finding ofa basis for restriction under RCW 26.09.191. RCW 26.09.187(3)(a) provides that the seven factors apply in any case "[w]here the limitations ofRCW 26.09.191 are not dispositive ofthe child's residential schedule." Mr. Leslie's position is that the limitations ofRCW 26.09.191 were dispositive here. Ms. Belton replies that Mr. Leslie has notpointed to any legal authority for his position and

4 The factors are: the relative strength, nature, and stability ofthe child's relationship with eachparent; the agreements ofthe parties, provided that they were entered into knowingly and voluntarily; eachparent's past andpotential for future performance ofparenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greaterresponsibility for performing parenting functions relating to the daily needs ofthe child; the emotional needs and developmental level ofthe child; the child's relationship with siblings and with other significant adults, as well as the child's involvementwith his or herphysical surroundings, school, orother significant activities; the wishes ofthe parents and the wishes ofthe child who is sufficiently mature to express reasoned and independent preferences as to his orherresidential schedule; and each parent's employment schedule. RCW 26.09. 187(3)(a). 13No.30160-5-III In re Marriage of Leslie

we. should not consider it-buthe cites the statute, which is legal authority. Neither party cites any reported decision addressing when the finding ofa restriction under RCW 26.09.191 is "dispositive ofthe child's residential schedule," nor have we been able to find one. Clearly the fact that the trial court found a basis for restriction is relevant to its obligation to consider the subsection .187 factors. RCW 26.09.184(6) ("Residential Provisions for the Child") provides that "[t]he [parenting] plan shall include a residential schedule
... consistentwith the criteria in RCW 26.09.187 and 26.09.191." (Emphasis added.) As noted, RCW 26.09.187(3) ("Residential Provisions") provides in part, at subsection (a), that "[t]he child's residential schedule shall be consistent withRCW 26.09.191. Where the limitations ofRCW26.09.191 are notdispositive of the child's residentialschedule, the court shall considerthe following factors:
..." (Emphasis added.) Both ofthese provisions refer to RCW 26.09.191 in its entirety, thereby including RCW26.09.191(3)(g). And RCW 26.09.191(3) authorizes a trial court that finds a factorjustifying restriction to "preclude or limit any provisions ofthe parenting plan." The trial court considered and commented on the guardian ad litem's and other witnesses' testimony as to the parents' care giving. Itmade the following observations in its oral ruling:

14No.30160-5-III In re Marriage of Leslie
I will be obviously making Mr. Leslie the primary residential parent under the parentingplan. I think the fewer transfers ofthis child the better, but I think that...that...thatthe
...fact is, that the less exposure [he] has to his mother for long periods oftime, the less the danger is that he's gonnatake on to himselfthekind ofmoral fiber, or lackthereofthat Ms. [Belton] has. Bythe same token, it sounds as i[fJ her older son has his own moral compass and
...which is fortunate, and he's decided-bythe testimony I heard, decided to...extricate himselffrom a relationship with his mother, because it has come to his attention how dishonest she is and has been. It's really
.. .! can't imagine a child being raised by a parentwith the kind of

...manipulation and
...lack ofmorality that Ms. [Belton] has displayed. When I say morality I mean, lack ofcommon decency toward those that you are trying to bethe closestto. Let alone people at large, such as employers. So, I can't imagine what it must be like being a little kid growing up in that environment, and as a result I think it is important for this courtto limit the opportunities ofthis parent, Ms. [Belton], to instill those kinds ofvalues. I don'tthink she would do it intentionally, but I think she would do it by example, and not even know that she's doing it because she's so used to doing it, and so used to using others for her own gain and her own benefit, and her own whim, can'thelp but observe that if you're a child inthat...in that home. But, I thinkthat even the most disordered parent, some exposure by the child to the parent is important and some relationship is important as long as the court or the parent onthe other end canprotectthe child some from the damagethat can be done by that. So, I will be adopting Mr. Leslie's proposed residential schedule for now. RP at 423-24 (most alterations in original). We conclude that where a trial court is authorized to "preclude orlimit any provisions ofthe parenting plan" on the basis ofa well-foundedrestriction, it is inherent in thetrial court's authority to decide that a restriction is dispositive. It is illogical for Ms. Belton to suggestthatthe same trial court, relying on the same evidence, could arrive at one residential plan as appropriate in light ofits restriction and a different one by going through a separate exercise ofapplying the seven factors. Here, Ms. Belton has not 15No.30160-5-III
. In re Marriage of Leslie
identified any subsection .187 factor that, when considered alongside the trial court's oral ruling and findings, gives rise to a concernthat it was never considered by the trial court. She simply points to thetrial court's failure to go through the exercise ofexpressly considering each factor onthe record. Given thetrial court's finding ofa restriction, its oral ruling and findings are sufficient. Andsee In re Marriage of Croley, 91 Wn.2d 288, 291-92,588 P.2d738 (1978) (we presume that the trial courtconsideredthe statutory elements as long as the record showsthat itreviewed evidence on each factor).5 III Finally, Ms. Belton argues thatthe final order ofchild support mustbe reversed on the basis ofhertwo claims oferror or abuse ofdiscretion addressed above. No new or different argument oferror in the fixing ofchild support is made. We have rejected Ms. Belton's other arguments oferror, thereby disposing ofthis third challenge as well. IV Mr. Leslie seeks attorney fees on appeal. He does not cite a statutory basis for an award offees. RCW 26.09.140 provides that we may awardreasonable attorney fees and costs ofdefending any proceedingunder chapter26.09 RCW. To do so, we must consider the needs ofthe requestingparty and the otherparty's ability to pay. RCW 26.09.140; In re Marriage of Robertson, 113 Wn. App. 711, 716, 54 P.3d 708 (2002)
.

. 5 Croley addressed RCW 26.09.187's predecessor, former RCW 26.09.190 (1973), whichthe legislature repealed in 1987. See LAWS OF 1987, ch. 460, § 61. 16No. 30160-5-111 In re Marriage of Leslie
Mr. Leslie has not shown his need orMs. Belton's ability to pay. The request for attorney fees on appeal is denied. Affirmed. A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for publicrecord pursuant to RCW 2.06.040.

WE CONCUR:

orsmo, C.J.

Brown, J.

17