FILED 

April 30, 2013 

In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


In re the Marriage of: ) 

) 

NORMAN D. LESLIE, ) No. 30160-5-III 

) 

Respondent, ) 

) 

and ) 

) 

JANELLE L. LESLIE, ) 

) UNPUBLISHED OPINION 

Appellant. ) 

SIDDOWAY, J. - Janelle Leslie, now Janelle Belton, appeals the residential 

placement and decision making provisions ofthe parenting plan entered for her son with 

Norman Leslie. She argues that the final order of child support must be reversed as well. 

We find no abuse ofdiscretion by the trial court and affirm. 

FACTS AND PROCEDURAL BACKGROUND 

Janelle Belton and Norman Leslie attended Deer Park High School together in the 

1980s. Following graduation they had no contact unti12007, when Ms. Belton renewed 

communication and the two had several long conversations. In July 2008, they spent a 

week together in Minneapolis, after which the pair returned to Newport, Washington, as a 
No. 30160-5-111 

In re Marriage ofLeslie 

couple. Unbeknownst to Mr. Leslie, Ms. Belton was already married. At the time of 

their trip to Minneapolis, she had lied to her husband, Randy Hitchcock, about going to 

Minneapolis on business. 

Mr. Leslie and Ms. Belton were married in September 2008. They had a son, 

Dennis, I born in February 2010. Five months later they separated, after Mr. Leslie 

learned of her marriage to Mr. Hitchcock. Mr. Leslie filed suit to have the marriage 

declared invalid. 

Attorney Rebecca M. Coufal was appointed guardian ad litem for Dennis. In 

November 2010, she filed her initial report. It indicated that Ms. Belton had been 

Dennis's primary caregiver up until the time ofthe separation and that at the time ofthe 

report, Mr. Leslie was the primary caregiver, although Dennis was cared for by Ms. 

Belton or baby-sitters when Mr. Leslie worked. 

The report recounted an unusual history ofmisrepresentation by Ms. Belton that 

Ms. Coufal characterized as complicating the 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 without the knowledge ofher husbands; and 

had a history of seeking medical help for herself and for Dennis, for undiagnosable 

problems that no one else had noticed. At one point Ms. Belton arguably put Dennis in 

I We use a pseudonym for the child's name, consistent with our General Court 

Order dealing with the use of children's names in opinions, orders, and rulings. 

2 
No.30160-S-III 

In re Marriage ofLeslie 

danger when he had sustained a fractured skull, been seen at Harborview Medical Center, 

and was released into her care based on her representation 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 that Ms. Belton's oldest child-a son-told 

Ms. Coufal that his mother "is a caring parent who will do anything for her children." 

Clerk's Papers (CP) at 4. Even he said that his mother needed to get her personal life 

together, however, and expressed concern about Ms. Belton being the primary caregiver 

ofhis younger half sister and Dennis. 

Ms. Coufal reported that her interviews suggested that Mr. Leslie could be unduly 

rigid. Several persons whom Ms. Belton suggested be contacted, including her parents, 

described Mr. Leslie as arrogant and having a drinking problem. Ms. Belton told Ms. 

Coufal ofthree incidents, which if accurate, 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-in the car-refused to relinquish a credit card to him. 

Considering all, Ms. Coufal's recommendation was that Mr. 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 "a fairly standard parenting plan." CP at 6. 

The matter was tried the following spring, in a two-day triaL Both parties testified 

as did the guardian ad litem and three other witnesses. At the conclusion oftrial, the 

3 

No. 30160-5-II1 

In re Marriage ofLeslie 

court declared the marriage invalid and entered findings of fact and conclusions of law 

and a final parenting plan, designating Mr. Leslie as the primary residential parent and 

imposing restrictions on Ms. Belton's decision making authority and residential time. It 

entered a final order of child support requiring payments 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 on her authority and residential time, and its order that Ms. 

Belton pay child support.2 We address the issues in tum. 

I 

Washington statutes contemplate that parenting plans for divorced or separated 

parents will provide for mutual decision making authority unless there are reasons not to 

provide for mutual authority, such as the reasonable opposition by one parent, geographic 

distance affecting the parents' ability to make timely mutual decisions, or a statutory 

mandate that one parent's decision making authority be restricted. See RCW 

2 Ms. Belton's reply argues that Mr. Leslie's response brief violates RAP 

10.3(a)(5) by failing to support many of its factual statements by any citation to the 

record. Nearly every fact stated in the brief has 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. Cf Harbor Enters., Inc v. Gudjonsson, 116 Wn.2d 283, 803 P.2d 

798 (1991) (nine pages of asserted facts urged as substantial evidence to support the 

court's findings but with no citations to the record violated the rule). 

4 

No. 30160-5-111 

In re Marriage ofLeslie 

26.09.187(2). The circu~stances under which a parent's decision making authority must 

be restricted-physical, sexual, or a pattern of emotional abuse of a 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 respect to 

these shortcomings, the trial court is given discretion to rely upon them to preclude 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. It provides: 

The mother's involvement or conduct may have an adverse effect on the 

child's best interests because of the existence of the factors which follow: 

A long-term and persistent pattern of dishonesty, fraudulent actions, 

financial exploitation and other such misconduct which not only operates as 

a poor parental example but which has also endangered this child's health 

on at least one occasion. Specifically, the mother fraudulently held herself 

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 monitor his recovery, when she had 

neither the experience or the knowledge of what to observe. Additionally, 

the mother married the father when she had a prior undissolved marriage. 

She financially exploited both of these 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 

5 
No. 30160-5-111 

In re Marriage ofLeslie 

manipulate others and get what she wants, without regard to whether it 

would be in the best interests of the child. 

CP at 26. 

Ms. Belton challenges this restriction, focusing on what she claims is the absence 

of a required nexus between her history and the adverse effect on Dennis that concerned 

the trial court. The requirement of a "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 effect that 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 of children, trial courts are given broad 

discretion. In re Marriage ofCabal quinto, 100 Wn.2d 325,327,669 P.2d 886 (1983). 

The court's discretion must be guided by the provisions of the Parenting Act of 1987, 

chapter 26.09 RCW. In re Marriage ofKatare, 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 of children when ample evidence supports the 

trial court's determination. In re Marriage ofKovacs, 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)). 

6 

No. 30160-5-III 

In re Marriage ofLeslie 

In fashioning a permanent parenting plan, the trial court seeks to maintain the 

child's emotional stability, to clearly establish the parents' responsibilities, and to 

minimize the child's exposure to harmful parental conflict. RCW 26.09. 1 84(1)(b), (d), 

(e). Each case must be decided on its own facts, as every child is different. In re 

Marriage ofJensen-Branch, 78 Wn. App. 482, 491,899 P.2d 803 (1995). The primary 

concern of the courts in custody matters is always the welfare of the child. In re Rankin, 

76 Wn.2d 533,537,458 P.2d 176 (1969). 

Restrictions on parental involvement are warranted when substantial evidence 

demonstrates that a restrictive factor makes unrestricted involvement or conduct with 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 of harm 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 occur before imposing restrictions on visitation. In re Marriage ofBurrill, 113 

Wn. App. 863,872, 56 P.3d 993 (2002). "Rather, the required showing is that a danger 

of ... damage exists." Id. 

In In 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 ofthe required nexus. In Wicklund, the trial court restricted the ability 

7 

No. 30160-5-111 

In re Marriage ofLeslie 

of the father, a gay man, to display affection toward his partner in front of his children 

because the children were having difficulty adjusting to his homosexuality. 84 Wn. App. 

at 769. The Court ofAppeals reversed the trial court, holding that the restrictions were 

an abuse of discretion because "[p]roblems with adjustment are the normal response to 

any breakup of a 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 on the mother's allegation that he had abused their daughter, an allegation that the 

trial court found was not proved. The Court ofAppeals reversed the trial court because 

"the unproven 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's recent 

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 

of adversity" that is "equivocal at best." Br. ofAppellant at (unnumbered) 12 (emphasis 

8 

No.30160-5-III 

In re Marriage ofLeslie 

omitted). She further argues that by stating only that her conduct '''may' [have] 'an 

adverse effect'" the finding does not satisfy the requirement that it be '"express,''' Id. 

Addressing the latter point first, the trial court's finding that the conduct "may 

have an adverse effect" directly tracks the language ofRCW 26.09.191(3). Given the 

introductory language of the subsection, a finding by the trial court that a factor or 

conduct "may have an adverse effect on the child's best interests" is equivalent to 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 that the 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 our review. The 

trial court made an express finding here. 

The trial court's restriction was not imposed for an unfounded reason. The 

mother's long-term pattern and persistent pattern of dishonesty, fraudulent actions, and 

financial exploitation provide a foundation for the trial court's conclusion that she is a 

poor parental example and is likely to endanger Dennis's emotional well being and 

psychological development as time passes, even ifhe has not yet experienced the full 

effects that concerned the court. He was, after all, only 15 months old at the time of trial 

and had been under his mother's primary care for only the first 5Y2 months of his life. 

The concerns for Dennis's well-being were borne out once already, when Ms. Belton 

9 

No.30l60-5-III 

In re Marriage ofLeslie 

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 past that are 

blatant lies.~~ Report ofProceedings (RP) at 22. Ms. Belton~s older son expressed 

reservations about her having primary care of his half-siblings. That evidence and the 

evidence of problems and burdens that Ms. Belton had left in her wake in prior years 

(significant financial exploitation oftwo husbands, broken relationships, lost employment 

based on misrepresentations, and unwarranted concern and medical expense inflicted on 

others by her hypochondriasis 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 cannot retry the facts on appeal, and will 

defer to the trier of fact for purposes of resolving 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 to be credible. After hearing 

from all ofthe witnesses, the trial court observed, "This testimony that I heard about Ms. 

[Belton] and her actions over the course ofyears, was a mind boggIer. I've rarely met 

someone who was so ... described as so dishonest and manipulative." RP at 420 (second 

alteration in original). 

Substantial evidence supported the trial court's finding of a factor warranting 

restrictions on Ms. Belton under the parenting plan. 

10 
No.30l60-5-II1 

In re Marriage ofLeslie 

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 of fact as to each. 

We first address the trial court's allocation of decision 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 other parent's decision making is mandated by RCW 26.09.191; 

(2) both parents are opposed to mutual decision making; or (3) one parent is opposed to 

mutual decision making, and the opposition is reasonably based on criteria set forth in the 

statute. 

The trial court explained its award of sole 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 ofa limitation under RCW 26.09.191 ... 

(b) 	 The history ofparticipation of each parent in decision making 

in each ofthe areas in RCW 26.09.1 84(4)(a) (here, mother 

has abused her unilateral decision-making in the past, 

endangering the child); and 

(c) 	 Whether the parents have demonstrated ability and desire to 

cooperate with one another in decision making in each of the 

areas in RCW 26.09. 184(4)(a) (the father cannot trust the 

mother to make decisions that are based upon the child's best 

interests because of her inability to be honest with him and 

with others). 

11 

No. 30160·5·111 

In re Marriage ofLeslie 

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 that the record does not support the statutory criteria that 

the court relied upon as making Mr. Leslie's opposition to mutual decision making 

reasonable. According to her, no evidence suggests that she "'abused her unilateral 

decision making in the past''' (recognized as a reasonable basis for sole decision making 

by RCW 26.09.1 87(2)(b)(ii)) or "'failed to 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 trying to co-parent 

with Ms. Belton, his concern about her decision making ability, and her inability to be 

honest. While Ms. Belton disagrees, we defer to the trial court to resolve conflicting 

3 In citing the criteria that 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 clear that it was relying on RCW 26.09.187(2)(b)(ii) and (b)(iii). 

12 

No.30160-5-III 

In re Marriage ofLeslie 

testimony by evaluating the persuasiveness of the evidence and credibility of the 

witnesses. Substantial evidence established the statutory criteria for sole decision making 

relied upon by the court .. 

Turning to the residential provisions of the parenting plan, RCW 26.09.187(3) sets 

out seven factors that ordinarily are to guide the allocation ofparents' residential time.4 

The trial court did not address the factors in the parenting plan or speak specifically to 

them in its oral decision. Ms. Belton argues that this is reversible error. Mr. Leslie 

responds that the trial court's consideration of the seven factors was made unnecessary by 

its finding of a 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 of RCW 26.09.191 were dispositive here. Ms. 

Belton replies that Mr. Leslie has not pointed to any legal authority for his position and 

4 The factors are: the relative strength, nature, and stability ofthe child's 

relationship with each parent; the agreements ofthe parties, provided that they were 

entered into knowingly and voluntarily; each parent's past and potential for future 

performance of parenting functions as defined in RCW 26.09.004(3), including whether a 

parent has taken greater responsibility 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 

involvement with his or her physical surroundings, school, or other significant activities; 

the wishes ofthe parents and the wishes ofthe child who is sufficiently mature to express 

reasoned and independent preferences as to his or her residential schedule; and each 

parent's employment schedule. RCW 26.09. 187(3)(a). 

13 

No.30160-5-III 

In re Marriage ofLeslie 

we. should not consider it-but he cites the statute, which is legal authority. Neither party 

cites any reported decision addressing when the finding of a 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 ... consistent with 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 with RCW 

26.09.191. Where the limitations ofRCW 26.09.191 are not dispositive ofthe child's 

residential schedule, the court shall consider the following factors: ..." (Emphasis 

added.) Both ofthese provisions refer to RCW 26.09.191 in its entirety, thereby 

including RCW 26.09.191(3)(g). And RCW 26.09.191(3) authorizes a trial court that 

finds a factor justifying restriction to "preclude or limit any provisions of the parenting 

plan." 

The trial court considered and commented on the guardian ad litem's and other 

witnesses' testimony as to the parents' care giving. It made the following observations in 

its oral ruling: 

14 
No.30160-5-III 

In re Marriage ofLeslie 

I will be obviously making Mr. Leslie the primary residential parent under 

the parenting plan. I think the fewer transfers of this child the better, but I 

think that...that...that the ... fact is, that the less exposure [he] has to his 

mother for long periods oftime, the less the danger is that he's gonna take 

on to himself the kind of moral fiber, or lack thereof that Ms. [Belton] has. 

By the same token, it sounds as i[fJ her older son has his own moral 

compass and ...which is fortunate, and he's decided-by the testimony I 

heard, decided to ... extricate himself from 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 parent with the kind of 

... manipulation and ...lack of morality that Ms. [Belton] has displayed. 

When I say morality I mean, lack of common decency toward those that 

you are trying to be the closest to. 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 court to limit the opportunities of this parent, Ms. [Belton], to instill 

those kinds of values. I don't think 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't help but observe that if 

you're a child in that...in that home. But, I think that 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 on the other 

end can protect the child some from the damage that 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 or limit any 

provisions ofthe parenting plan" on the basis of a well-founded restriction, it is inherent 

in the trial court's authority to decide that a restriction is dispositive. It is illogical for 

Ms. Belton to suggest that the same trial court, relying on the same evidence, could arrive 

at one residential plan as appropriate in light of its restriction and a different one by going 

through a separate exercise of applying the seven factors. Here, Ms. Belton has not 

15 

No.30160-5-III . 

In re Marriage ofLeslie 

identified any subsection .187 factor that, when considered alongside the trial court's oral 

ruling and findings, gives rise to a concern that it was never considered by the trial court. 

She simply points to the trial court's failure to go through the exercise of expressly 

considering each factor on the record. Given the trial court's finding of a restriction, its 

oral ruling and findings are sufficient. And see In re Marriage ofCroley, 91 Wn.2d 288, 

291-92,588 P.2d 738 (1978) (we presume that the trial court considered the statutory 

elements as long as the record shows that it reviewed evidence on each factor).5 

III 

Finally, Ms. Belton argues that the final order of child support must be reversed on 

the basis of her two claims of error or abuse of discretion addressed above. No new or 

different argument of error in the fixing of child support is made. We have rejected Ms. 

Belton's other arguments of error, thereby disposing of this third challenge as well. 

IV 

Mr. Leslie seeks attorney fees on appeal. He does not cite a statutory basis for an 

award of fees. RCW 26.09.140 provides that we may award reasonable attorney fees and 

costs of defending any proceeding under chapter 26.09 RCW. To do so, we must 

consider the needs of the requesting party and the other party's ability to pay. RCW 

26.09.140; In re Marriage ofRobertson, 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), 

which the legislature repealed in 1987. See LAWS OF 1987, ch. 460, § 61. 

16 
No. 30160-5-111 

In re Marriage ofLeslie 

Mr. Leslie has not shown his need or Ms. Belton's ability to pay. The request for 

attorney fees on appeal is denied. 

Affirmed. 

A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


orsmo, C.J. 

Brown, J. 

17