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

CHAD A. SCHAEFER, No. 79134-6-I

Appnt, DIVISION ONE V. UNPUBLISHED OPINION HEATHER M.KIER,Respondent. FILED: January 13, 2020 MANN, A.C.J.

—The provisions ofWashington’s child relocation act (CRA), RCW26.09.405-560, do not apply in cases where the parenting plan allocates residential time equallyto each parent.1 The parenting plan in this case affords each parent substantially equal residential time with theirtwo children. Forthis reason alone, the court properly dismissed the father’s objection to the mother’s relocation, alleging failure to complywith the notice provisions ofthe CRA. We affirm.

1 See In re Marriage of Snider and Stoud, 6 Wn. App. 2d 310, 317, 430 P.3d 726 (2018).No. 791 34-6-1/2

Overthe past decade, Chad Schaefer and Heather Kier have extensively litigated issues involving the residential schedule and support oftheirtwo children. An agreed parenting plan entered in 2012, when the children were ages 7 and 3, initially placed restrictions on Schaefer’s residential time under RCW26.09.191(3) based on a history ofacts ofdomesticviolence and provided forthe children to reside primarilywith Kier.2 Contingent upon Schaefer’s compliance with domestic violence treatment, the parenting plan provided for gradually increasing residential time with Schaefer. The final phase ofthe residential schedule, now applicable, setforth an alternating 2-2-6-4 schedule, underwhich the children spend substantial residential time in the household of each parent.3 In April 2018, Schaeferfiled an objection to Kier’s relocation, alleging that Kier had moved to a new residence without properly notifying him in advance as required bythe CRA. RCW26.09.405-.560. Schaefer asserted that Kier’s relocation “would cause more harm than good.” He also argued, for reasons largely unrelated to the relocation, thatthe children should reside primarilywith him. Specifically, Schaefer raised complaints about Kier’s behavior, alleged instability, reliance on him to perform parenting duties, and failure to prioritize the children’s interests. On June 1, 201 8, the court issued an order directing both parties to appear ata pretrial conference hearing on July 11,2018. The court’s order

2 The parenting plan also required Kierto engage in therapy.

~ Measured by overnightstays, in a 14-day period, the children spend 8 nights with Kier and 6 nights with Schaefer. 2No. 79134-6-1/3

warned thatthe “[f]ailure to appear can mean dismissal ofyour case.” The order further required the parties to confirm their participation five days in advance of the hearing and provided information as to howto do so bytelephone and e mail.4 The document reflects that copies ofthe orderwere sentto both Schaefer and Kier. On June 22, Schaeferfiled a motion seeking temporary orders thatwould provide forthe children to live exclusivelywith him and would place restrictions
on Kier’s contact with them. In addition to elaborating on the allegations he raised in his objection to relocation, Schaeferstated that, by mutual agreement, the oldest child was now residing full-time in his household. Schaefer noted his motion fortemporary orders forJuly 1 9. In the meantime, only Kier appeared in court on July 11, 2018, the date of the scheduled pretrial conference. Kierasked the courtto dismiss Schaefer’s objection because her relocation did not necessitate any changes to the parenting plan and Schaefer had not served herwith a copy of his objection. The trial court swore Kier in as a witness and she testified that she secured more spacious and affordable housing thatwas “12 minutes away,” and that her move did not require any changes to the residential schedule. Kier confirmed that she made Schaefer aware that she had no intention ofattempting to change the children’s schools based on her new address. ~

“The record does not indicate whethereither party confirmed participation.

~ Kierclarified that her new residence was located outside ofthe children’s school district, but expressed the opinion thatthe current school districtwas “better” and that she was willing to do “a little extra driving” to keep the children attheircurrent schools. 3No.. 79134-6-1/4 The courtfound Kier’s testimony about her relocation was credible. The courtfurtherfound that Schaefer had notice ofthe time, date, and location ofthe pretrial conference and failed to appear. And given thatthe relocation did not require any changes with regard to schooling orthe parenting plan, and based upon a review ofthe courtfile and prior motions filed by Schaefer, the trial court determined that Schaferfiled the objection in “bad faith,” as a means to “continue conflict.” The court dismissed Schaefer’s objection. Approximately a week later,
on July 19, based on the dismissal of his objection to relocation, a trial court commissionerdismissed Schaefer’s motion fora temporary parenting plan. Schaeferthen filed a series of motions for reconsideration. He sought reconsideration ofthe order ofdismissal. The court denied the motion on July 31, 2018, noting that Schaefer’s objection was dismissed based upon his failure to appear atthe pretrial conference. The courtfurther observed that notice ofthe hearing was mailed to Schaefer’s last-known address and there was “no credible evidence” that he did not receive it, such as an “undeliverable mail” notice in the courtfile. Schaeferfiled a second motion, asking the courtto reconsider its July 31, 2018 orderdenying reconsideration. The court denied this motion as well on August 20, 2018, stating that “no such reliefexists underthe civil rules.” Schaeferfiled a third motion, seeking reconsideration ofthe court’s August20, 2018 order denying reconsideration. The court denied this motion on September 14, 2018, finding that Schaeferfailed to establish a “legal basis forthe courtto grant his requestto reconsiderthe court’s previous orderdismissing his objection

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to the mother’s relocation.” Schaeferthen filed a “final” motion seeking reconsideration ofthe September 14, 2018 order. In denying this motion, the court directed that anyfurther requests for relief be pursued in the form ofan appeal to this court. Schaefer appeals.6

Schaefer challenges the court’s dismissal of his objection to Kier’s relocation and its denial of his multiple motions for reconsideration. Schaefer focuses on the court’s determinations that he received notice ofthe pretrial conference and that his failure to appearamounted to a failure to prosecute the matter. Schaeferalso challenges the court’s authorityto dismiss his motion based on a “technicality ofa non-appearance,” in light ofthe significant interests of his children at stake. But setting aside the issue of Schaefer’s compliance with the court’s order, his objection to Kier’s relocation was properly dismissed simply because itwas made pursuantto the CRA, which was inapplicable underthese circumstances. We may affirm on any basis supported bythe record. In re Marriage of Raskob, 183Wn. App. 503, 514-15, 334 P.3d 30(2014). Underthe CRA, when a parentwith whom a child is scheduled in the parenting plan to reside a majority ofthe time decides to relocate, he or she must notify anyone “entitled to residential time orvisitation with the child.” ROW 26.09.430. Relocations are presumptively permitted and must be allowed if no one objects within 30 days of receiving notice. ROW 26.09.520. A parent is entitled to object and may rebutthe presumption by demonstrating thatthe

6 Kierhas notfiled a brief in responseto Schaefer’s appeal.
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“detrimental effect ofthe relocation outweighs the benefit ofthe change to the child and the relocating person,” based on 11 factors setforth in the statute. RCW26.09.520. However, where parents share equal residential time under a parenting plan, the plain language ofthe CRA prevents its application. In re Marriage of Snider and Stroud, 6 Wn. App. 2d 310, 317, 430 P.3d 726 (2018); In re Marriage ofWorthley, 198 Wn. App. 419, 428, 393 P.3d 859 (2017). In this situation, both parents are presumptivelyfit, and neither is entitled to a favorable presumption. See Snider, 6 Wn. App. 2d at 317; Worthley, 198 Wn. App. at431 (where “both parents are equally entrusted to act in the child’s best interests,” the CRA presumption in favor ofthe relocating parent is inapplicable). Worthley and Sniderapply here even though Kier is designated as the custodian and even though residential time is not divided exactly evenly. ~ In
re Marriage ofJackson, 4Wn. App. 2d 212, 220, 421 P.3d 477 (2018) (whether the CRA’s provisions apply depends on the factual question ofwhetherthe child resides with one parentthe majority ofthe time; custodian designation is not controlling). The rationale ofthese cases is not based on a precise mathematical calculation ofdays or hours. Instead, we assess whetherthe parenting plan evinces an intentto share child-rearing and forthe parents to spend nearly equal time with their children. The parenting plan here demonstrates such an intent and affords each parent approximately equal residential time. A parentwho seeks to make changes to a shared residential schedule must demonstrate adequate cause underthe modification statute. ~ RCW

6No. 79134-6-1/7

26.09.260(1); Worthley, 198 Wn. App. at429; Snider, 6 Wn. App. 2d at 316. The burden ofadequate cause underthe modification statute, “fulfills the policyto maintain the existing pattern ofthe parent-child relationship to protectthe best interest ofthe child” and, instead ofemphasizing the interests ofone parent or the other, places the focus on the child’s best interests. Worthley, 1 98 Wn. App. at429, 431. And consistentwith the CRA, “nonrelocating parents have rights underthe modification statute.” Worthley, 198 Wn. App. at432. For instance, a nonrelocating parentwith a shared residential schedule can pursue sanctions or contempt ifthe relocating parent removes a child from their school district, can objectto the relocating parent’s decision byfiling a petition for modification, and
can move fora temporary order requiring the return ofthe child. Worthley, 198 Wn. App. at432-33. Although Schaefersoughtto substantially alterthe residential schedule, he did notfile a petition to modify. Atrial court may not grant a modification to a parenting plan sua sponte. See In re Marriage of Christel, 101 Wn. App. 13, 23- 24, 1 P.3d 600 (2000) (abuse ofdiscretion to modify parenting plan in the absence ofa pending motion to do so). Without an appropriate motion before it, the trial courtwas in no position to decide whether a modification was being sought, whetherthe appropriatethreshold had been met, or otherwise proceed to the merits. In sum, because the CRA is inapplicable and there was no modification petition before the court, the court did not err in dismissing Schaefer’s objection to relocation.

7No. 79134-6-1/8 This is notto suggestthatthe court lacked authorityto dismiss Schaefer’s objection to relocation based on his noncompliance ofthe court’s order requiring his appearance atthe pretrial conference. Although courts do not resort to dismissal lightly, a trial court may exercise its discretion to dismiss an action based on a party’s failure to prosecute, or noncompliance with a reasonable court order or court rules. CR 41(b); Woodhead v. DiscountWaterbeds, lnc~ 78 Wn. App. 125, 129-30, 896 P.2d 66 (1995); Walkerv. Bonney-Watson Co., 64 Wn. App. 27, 37, 823 P.2d 518 (1992). The court also has the discretionary authorityto manage its own affairs to furtherthe orderly and expeditious disposition of cases. Woodhead, 78 Wn. App. at 129. We review a trial court’s orderofdismissal on these grounds for abuse ofdiscretion. Woodhead, 78 Wn. App. at 130-31. Atrial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Woodhead, 78 Wn. App. at 131. Contraryto Schaefer’s arguments, the dismissal of his objection to relocation was not equivalent to a defaultjudgment and we find no support in the record for his claim thatthe trial courtviolated the Code ofJudicial Conduct or was “egregiously out of control and biased” against him.7 Schaefer claims that, in concluding that he had notice ofthe pretrial hearing, the court ignored his evidence. But Schaefersupplied no competent, admissible evidence on the issue of notice in the form ofaffidavits ordeclarations. Based on the only evidence in the record, the courtwas entitled to drawthe inference that Schaefer

~ The record does not support Schaefer’s claims thatthe court drafted a motion to dismiss on Kier’s behalfor inappropriately provided legal advice to her. The record establishes only thatthe court informed Kier aboutthe existence offree and low cost legal resources that might be available and advised herthat she could call the trial court priorto attending any scheduled future hearing to determine whetherthe hearing had been confirmed. 8No. 79134-6-1/9

had notice ofthe hearing butfailed to appear. Schaeferfails to establish thatthe court abused its discretion by dismissing his objection based on his failure to appear as directed by court order. Schaefer requests an award ofcosts on appeal. Because he is notthe prevailing party in this appeal, we deny the request. See RAP 14.2. We affirm.

- -I WE CONCUR:

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