### FILED JULY 11, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE IntheMatter ofthe Parentage and Support of ) ) No. 34975-6-111 N.R.M. ) ) Child, ) ) KAYLAVALLEE, ) UNPUBLISHED OPINION ) Respondent, ) ) and ) ) DUANEMOORE, ) ) Appellant. ) KORSMO, J.

- Duane Moore, representing himself, appeals the outcome ofthe trial determiningthe visitation and support obligations for N.R.M., his childwith respondent KaylaVallee. The appealpresents numerous arguments concerningthe support obligation, theparentingplan, a sanction imposed onMr. Moore attrial, andthe denial ofreconsideration. Addressingthe arguments bythe four topics noted above, we affirm. 1

1In addition to orderingthe claims differently thantheparties do, wereformulate several ofthe appellant's arguments.No. 34975-6-III Vallee v. Moore

PROCEDURAL HISTORY2 The parents sometimes lived together and sometimes maintained separate households during their relationship. Afterthe relationship ended, the couple was unable to communicate productively or agree on visitation terms, although bothparents recognized the importance ofthe otherparent in the baby's life. On one occasion, Moore took the child home from daycare and denied Vallee access to the 18 month old, telling her to obtain aparenting plan. She then filed suit. The matter ultimately went to trial before the Honorable Bryan Chushcoffafter failed attempts at negotiating a resolution ofthe case. Eachparty asked the court to adopt theirrespective proposedparentingplan. At the conclusion ofthe trial, the courttook the matter under advisement. The following week, Judge Chushcofffiled a parentingplan and a support order. The court also imposed $2,000 in sanctions against Mr. Moore for intransigence during the failed settlement negotiations. Mr. Moore sought reconsideration on several bases, including a contention that the trialjudgehad not properly weighedthe strength ofhis bond with the child. He reiterated his request for greater weekend visitation withthe child. The court corrected some minor

2 Most ofthe facts concerning the relationship and the trial court's ruling are not relevant to this appeal, but additional facts will be discussed as necessary in conjunction with our discussion ofsome ofthe issues. 2No. 34975-6-III Vallee v. Moore typographical errors in the order, but otherwise denied reconsideration. Mr. Moore then filed this appeal. ANALYSIS We will address the claims raised by Mr. Moore in accordance with the subject matter ofhis arguments. First, we will address the support obligation orderbefore turning to the parenting plan, sanction, and reconsideration arguments. Initially, it is appropriate to rememberthese words ofwisdom concerning the importance offinality in domestic relations rulings: We once again repeat the rule that trial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals by tinkering with them. The emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden ofshowing a manifest abuse ofdiscretion on the part ofthe trial court. In re Marriage of Landry, 103 Wn.2d 807,809,699P.2d 214 (1985). This emphasis on finality and moving forward is reflected in the well-settled standards that govern review ofdomestic relations cases. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A court acts on untenable grounds when its factual findings are not supported by the record; it acts for untenable reasons ifit uses an incorrect standard of law or the facts do not meet the requirements ofthe standard oflaw. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). 3No. 34975-6-III Vallee v. Moore Support Obligation Mr. Moore contends thatthe trial court erred in entering the support orderby (1) including information from a different case, (2) failing to grant a deviation, and (3) calculatingthe obligation on the basis ofevidence presented attrial instead ofusing posttrial information. These contentions lack merit. The law governing these challenges is clearly settled. Child support is setby statute and the statutory scheme divides the support obligation proportionately to the parents' respective income levels. RCW 26.19.001, .080(1). The statutes allow the trial court to deviate from the standard schedule andprovide a nonexclusive list ofreasons for deviation. RCW 26.19.075. One ofthose reasons, relied on by Mr. Moore here, is a support obligation to children from anotherrelationship. RCW 26.19.075(l)(e). That basis for deviation is permitted only ifthe parent is actually paying the support obligation. RCW 26.19.075(l)(e)(iii). Theparent seeking the deviation also must show that the support obligation isjudicially enforceable. In re Parentage of O.A.J., 190 Wn. App. 826, 835, 363 P.3d 1 (2015). We review the court's deviation ruling for abuse of discretion. RCW 26.19.075(4); In re Marriage of Rusch, 124 Wn. App. 226,236, 98 P.3d 1216 (2004), overruledinparton othergrounds byIn re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007). Mr. Moore's first argument is thatbecause the order entered bythe trial court containedthe dates ofbirth ofanother couple whose marriage was dissolved in Pierce 4No. 34975-6-111 Vallee v. Moore County, the trial court somehow "merged" the two cases together. This argument is utterly without merit. The birthdates were corrected as a result ofthe motion for reconsideration. Nothing in the records ofthe case suggests that the trial court applied the wrong financial information in setting the support obligation. Ifsuch had happened, Mr. Moore easily would have been able to demonstrate the error onthe record. Mr. Moore also argues that the trial court should have granted him a deviation down due to his support obligation for an older child. There are several problems with this argument. He did not present it at trial.3 His request during reconsideration came too late. More importantly, ourrecord does not support any factual basis for grantingthe request. Nothing in the evidence presented at trial suggests that Mr. Moore was subject to a formal support obligation or that he was paying that obligation. Nor did the motion for reconsideration mention any evidence in the record that would have supported the deviation. This argument lacks support in the record. Finally, Mr. Moore claims that the court miscalculated his income and submitted a letter from his employer, written four months after the trial, which states Moore works less than 80 hours perpay period. However, this court does not consider evidence that

was not before the trial court. RAP 9.1 l(a). More importantly, the evidence contradicted Mr. Moore's own trial testimony that he did work40 hours perweek. The trial court

3 While Mr. Moore argues that the request was in his written materials presented to the trial court, he did not designate those documents on appeal and they are not before us. 5No. 34975-6-III Vallee v. Moore understandably ruled on the basis ofthe evidence before it and could notpossibly err in failing to anticipate a later occurring change. The trial courthad very tenable bases for rejecting Mr. Moore's arguments. There

was neither error nor abuse ofdiscretion in the rulings concerning the support obligation. ParentingPlan Mr. Moore challenges several aspects ofthe parentingplan. Many ofthese challenges are based on his personal view ofhis relationship with N.R.M. and his personal view ofthe child's best interests. He again fails to demonstrate error. Parentingplans are individualized decisions that depend on a wide variety of factors, including "'culture, family history, the emotional stability oftheparents and children, finances, and any ofthe other factors that could bear upon the best interests of the children.'" In re Parentage of Jannot, 149 Wn.2d 123, 127, 65 P.3d 664 (2003) (quotingIn re Parentage of Jannot, 110 Wn. App. 16, 19-20, 37 P.3d 1265 (2002)). The combination ofrelevant factors and their comparative weight are different in every case and no rule ofgeneral applicability can be effectively constructed. See Jannot, 110 Wn. App. at 20. The trial court is better suited than an appellate courtto weighthese varied factors on a case-by-case basis. Id.; In re Marriage of Maughan, 113 Wn. App. 301, 305, 53 P.3d 535 (2002). In large measure this results from the trial court's unique opportunity to observe the parties and thereby determine the best interests ofthe child. In

re Marriage of Timmons, 94 Wn.2d 594, 600, 617 P.2d 1032 (1980). Accordingly, this 6No. 34975-6-111 Vallee v. Moore

court reviews a parentingplan for abuse ofdiscretion. In re Marriage of Kovacs, 121 Wn.2d 795,801,854 P.2d 629 (1993); In re Marriage of Jensen-Branch, 78 Wn. App. 482, 490, 899 P.2d 803 (1995). The trial court expressly told the parties at the conclusion ofargument that because the parents "don'tworkwell with each other," it would benecessary to implement "a straightforward fairly simpleparentingplan" that minimizedparental contact. Report ofProceedings (RP) at 269. Tothat end, the court designated Ms. Vallee

as theprimary residential parent and gave her authority to make daycare decisions, while leavingthe parents tojointly make all othermajor decisions. The court also directed that Mr. Moore would have custody ofthe child every otherweek from Thursday at 6:00 p.m. to Sunday at 6:00 p.m. Clerk'sPapers (CP) at 80, 84-85. Mr. Moore contends thatthe trial court erred in not giving him 50 percent ofthe child's time, arguing thatthe schedule should give him N.R.M. every week instead of every other week,just as the temporary parentingplan had done. He contends thatthe court's order is not in the best interests ofthe child. He also argues thatthe court erred in not considering him the primary parent, erred in giving Ms. Moorethe daycare decisionmaking authority, and showedbias against him by applying the "friendly parent" standard in favor ofMs. Vallee. Since there is nothing in the recordto suggestthatthe

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court applied the friendly parent doctrine, we do not further discuss that claim.4 We will address the other contentions in the order stated. The primary objection is that the final parentingplan did not follow the temporary parentingplan's schedule and, instead, allowedvisitation only on alternate weekends. At trial, Mr. Moore asked for a plan that left the child with him onthe first, third, and fourth weekends ofevery month, while leaving N.R.M. with his mother and his brothers5 on the second weekend and any fifth weekend that might occur. RP at 149-150. In its oral remarks, the court rejected Ms. Vallee's request for co-parenting counselingbecause the parties could hardly talkto each other. Thejudgenotedthat bothparents were more interested in beingright than in communicating with each other. RP at 268-269. Tothat end, the court believed a simplifiedrelationship was in order. Mr. Moore cites to the public policy that a child'sbestinterests ordinarily are served by maintainingthe existing patterns ofchild-parent interaction. RCW 26.09.002. 6 That policy, however, also recognizes that those patterns will be altered "tothe extent necessitated by the changedrelationship ofthe parents." 

### Id. Even Mr. Moore's trial testimony asked for a differentplanthan the temporary parentingplan, although he was

4 Washington law does notrecognize the "friendlyparent" doctrine. See In re Marriage of Rossmiller, 112 Wn. App. 304,311, 48 P.3d 377 (2002); In re Marriage of Lawrence, 105 Wn. App. 683, 687, 20 P.3d 972 (2001). 5 Ms. Vallee has three sons from an earlierrelationship. 6 Ofcourse, the original interaction pattern was disrupted whenthe couple no longer lived together. 8No. 34975-6-111 Vallee v. Moore only conceding one weekend a month to Ms. Vallee. The trial court recognized that coparenting was not possible given the failure ofthe couple to work together. This was a tenable basis, recognized by statutory policy, for settling on the final parenting plan. It

was not in N.R.M.'sbest interests to see his parents fight any more frequently than was necessary.7 Mr. Moore also argues that the court improperly weighed8 the strength ofhis relationship with N.R.M., an error that he believes impacted both the weekend visitation schedule and the designation ofMs. Vallee as the primary residential parent. In his mind, Mr. Moore believes his ties with N.R.M. are strongerthan those between the child and Ms. Vallee. The trial court, however, found that both adults were goodparents to the child. RP at 268. There was no finding that Mr. Moore had a strongerrelationship. If

7Mr. Moore also fails to explain why the temporaryparentingplan shouldhave been given any weight in setting the final plan. The whole purpose ofa temporary plan-whichtypically is entered withoutbackground information or by the agreement of the parties-isto have some rules in place while the court considers what is in the child's long-term best interests. The fact atemporary plan had been entered did not somehow bind the trial court in the future. RCW 26.09.191(5). 8 Although one ofhis argument captions alleges that the court failed to analyze the RCW 26.09.187(3)(a) factors, he does not argue that point in the brief. Instead, he focuses on the facts that support his view that he had the strongerrelationship withthe child, RCW 26.09.187(3)(a)(i), the most important ofthe factors. See RCW 26.09.187(3)(a). A trial court should make a record ofits consideration ofthese factors. E.g., In re Parenting & Support of CT, 193 Wn. App. 427,443,378 P.3d 183 (2016). The record provided us does not show that consideration, butthe failure to argue the pointprecludes us from determining that it did not happen. Even on reconsideration, Mr. Moore did not claim that the trialjudge failed to apply the statute. He simply disagreed with the result ofthe weighing. 9No. 34975-6-III Vallee v. Moore

Mr. Moore believed he had a stronger relationship, he was free to prove the point. He did not. This court is not in the business ofweighing evidence and making its own factual determinations. E.g, Quinn v. CherryLaneAutoPlaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). This argument has no factual support in the record. The designation ofMs. Vallee as the primary custodial parentwas not an abuse of discretion. The child was principally living with her and the other children. Eventhe parentingplanproposed by Mr. Moore leftN.R.M. with Ms. Vallee the greater share of the week. In such circumstances, she was understandably recognized as the primary custodian. Mr. Moore next complains that Ms. Vallee was given control overthe daycare decision making. Again, we see no abuse ofdiscretion in leaving that decision to the primary custodial parent. It was understandably desirable to keep Ms. Vallee's children together and it was appropriate for herto be able to have convenient daycare. The demonstrated lack ofability to get along with each other on this very issue9 was an obvious reason to not leave Mr. Moore with equal control overthis important determination--particularly where that decision would also impactthe other children.

9 See the example discussed in the following section. 10No. 34975-6-III Vallee v. Moore

The inability ofthe parents to worktogether was a legitimate basis for the courtto consider when finalizing theparentingplan. Minimizing the conflictbetween the two

was in the child's best interests. The trial court did not abuse its discretion. Sanction Mr. Moore next argues that the court erroneously sanctionedhim for intransigence during the settlement negotiations. There was no abuse ofthe trial court's considerable discretion in this ruling. The decision to impose sanctions is one within the trial court's discretion. In re Marriage of Mattson, 95 Wn. App. 592,604,976P.2d 157 (1999). Here, the trial court expressly found: The court finds that Moore altered settlement documents and intentionally failed to disclose that fact to the Petitioner's counsel in an apparent attempt to deceive Petitionerto have this court enter documents toresolve this matter on terms that were not, in fact, agreed to by Petitioner. CP at 92. The record amply supports this determination. Ms. Vallee testified to the alterations andthe altered documents were introduced at trial for the sole purpose of demonstrating the alterations. Mr. Moore did such things as insertthe word "not" into statements in the settlement form. For example, he altered the proposal that "the child shall attend daycare with the mother's other children" into "the child shall not attend daycare with the mother's other children." RP at 68. While there are many other examples, this one is typical. Mr. Moore altered the meaning ofkey provisions ofthe

11No. 34975-6-111 Vallee v. Moore

settlement document, signed it, and then attempted to deceive Ms. Vallee and her counsel into believingthat he had agreed to theirproposal. Ms. Vallee's attorney indicated that she expended attorney fees totaling $2,040 in attending the settlementhearing and in seeking sanctions for Mr. Moore's misbehavior in that forum. CP at 130-131. The trial court awarded $2,000 ofthat sum. CP at 92. There was a clearbasis for finding Mr. Moore intransigent. He was free to not agree with the settlementproposals. However, he could not alterthose proposals and then attemptto deceive the other side by claimingto have agreedto the original proposals. This was a waste oftime that demonstrated thathis interest in settlementwas

a sham. It was appropriate to reimburse Ms. Vallee for the costs imposed onherbyMr. Moore as a result ofthis fruitless exercise. The trial court did not abuse its discretion. Reconsideration The only remaining contention is the argumentthatthe court erred in stating in its order denying reconsiderationthat "theparties agreedit was inappropriate for the Respondentto have residential time everyweekend as hadbeenthe case pendingtrial." CP at 119 (alteration in original). Mr. Moore contends that he did not agree that itwas inappropriate. As with the other issues presented bythis appeal, we review a court's order on reconsideration for abuse ofdiscretion. City of Longview v. Wallin, 174 Wn. App. 763, 12No. 34975-6-III Vallee v. Moore 776,301 P.3d 45 (2013). While this challengedrecitation was oflittle moment since the court did not err in setting the visitation schedule, it also did not amountto an abuse of discretion. Bothparties filed parentingplans thatpermitted the otherto have some weekend time with N.R.M. That fact permittedthe trial court to inferthat theparties agreed that it was not appropriate for one parentto have every weekend. The court did not abuse its discretion in denying reconsideration. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, J. 

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