IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Marriage of ) No. 79376-4-I

RONALD P. HUNTER, )

)

Respondent, )

and

) UNPUBLISHED OPINION

CHRISTIE JULIE MARIE CANO, )

) FILED: August 26, 2019

Appellant. )

__________________________________________________________________________________)

VERELLEN, J. — Modifications to a parenting plan must be in the best

interests of the children. Here, the trial court did not adequately consider the

statutorily mandated factors or the children’s current needs. Rather, the court

relied on an invalid arbitrator’s decision and an underdeveloped factual record

to order the entry of a new parenting plan.

Therefore, we vacate the arbitrator’s decision and the court’s entry of the

parenting plan, and we remand for proceedings consistent with this opinion.

FACTS

Ron Hunter and Christie Cano dissolved their marriage in 2009. The

court adopted a parenting plan for their two children. Their son and daughter

are now 17 and 11, respectively. Their son suffers from a medical condition
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that causes frequent migraines and requires medication. The 2009 parenting

plan requires a 50-50 split of certain medical expenses for the children. In

March of 2016, Cano sought reimbursement of child-related expenses from

Hunter. In June of 2016, Hunter petitioned to modify the parenting plan. The

parties stipulated adequate cause warranted modification, and they entered

mediation.

Mediation resulted in three CR 2A agreements. The parties signed two

CR 2A agreements on August 31, 2016. One agreement temporarily limited

Hunter’s time with his children from overnights every other Saturday to eight

hours every other Saturday, required the immediate start of family counseling,

and allowed for the use of an arbitrator to choose a counselor. The other

agreement managed communications between the parents.

The CR 2A agreement central to this appeal was signed in February of

2017 and included a condition precedent to entering the new parenting plan

attached to the agreement:

Attached hereto are the provisions for [the] final parenting plan

that will be entered with the court after Loran lnman has

completed his therapy with the parties and children. This plan or

portions of this plan may be implemented by Loran Inman prior to

his completion of the therapy at his discretion. Both parents shall

cooperate and follow the recommendations and directions of

Loran Inman.[1]

Clerk’s Papers (CP) at 519.

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The agreement also required both parties and their children to

“immediately” enter counseling with Inman and gave In man the power to

“determine the structure of the therapy to re-unify the father’s relationship with

the children.”2 The agreement “contemplated that the therapy with Loran lnman

will last approximately [three] months.”3 The CR 2A continued the limitations on

Hunter’s residential time “until Loran Inman has directed or recommended

otherwise.”4 The agreement also contained an arbitration clause and a clause

authorizing court costs and attorney fees.

Hunter and his children soon began therapy with Inman. After more than

three months of therapy, Inman reported Hunter “has ‘not believed” that his son

has a medical condition and “has ‘withheld’ medication from him on one

occasion.”5 Inman also stated, “The children have made their point very clear

that they do not desire to have contact with their father, and do not enjoy the

contact that they do have.”6 Counseling continued. In October of 2017, Inman

concluded, “[M]ore intensive therapy is required to benefit this family and allow

for [family] reconciliation to occur.”7 But because Inman’s schedule did not let

2 Id.

~ Id.

~ CP at 520.

~ CP at 540.

6 Id.

~ CP at 543.

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him see Hunter and his children more frequently, he discontinued therapy and

referred them to a new therapist.

On December 9, Hunter lost his temper, cursed at and insulted his kids.8

On December 18, Cano’s attorney sent Hunter’s attorney a letter saying that

Cano would ‘not allow unsupervised visitation between Mr. Hunter and the

children” until ‘the parties and children resume counseling.”9 The next day,

Hunter filed a motion to enforce the portion of the CR 2A regarding visitation.

8 This incident occurred after Hunter took his children to the

Scottish Highland Games. Hunter’s son recorded a video of his father’s

outburst:

Son: You need counseling. You need like--you

have psychological problems.

Hunter: No, you do. You guys let your mom turn

fuckin’ against your own dad, this is

ridiculous.

Daughter: Yeah, because you’re freakingHunter: I haven’t molested you. I haven’t done

anything to you.

Son: It’s mental, it’s mental stuff. You yell at us

all the time.

Hunter: Because I want to be with my own flesh and

blood? Fucking culture then, whatever

bullshit your mom tells you.

Son: Yeah. You want to be with your own flesh

and blood, but you yell at us.

CP at 569.

~ CP at 343.

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Commissioner Judson granted the motion and ordered that the parties follow

the residential placement provisions of the CR 2A. The court also scheduled a

review hearing for January 2018 to see whether Hunter resumed therapy.

Hunter briefly saw a new therapist in February and March of 2018 but stopped,

apparently because it was not covered by insurance.

In May, Hunter alleged that Cano denied his last three visits and moved

to enforce the residential time provisions of the CR 2A to find Cano in contempt.

Judge Garratt heard the motion. The court found Cano in contempt. Judge

Garratt’s order required compliance with the arbitration provision of the CR 2A

and that “[a]ny disputes with a final parenting plan will be submitted to [the

arbitrator].”1° It also required entry of “a final parenting plan from the Feb. 2,

2017, CR 2A within 60 days of this order unless superseded by further court

order. “11

On July 31, 2018, Hunter filed a motion to enforce the CR 2A and enter

the parenting plan. In response, Cano moved to enforce the therapy provisions

of the CR 2A. Judge Rietschel heard argument on the motions. Relying on

Judge Garratt’s order, the court ordered the parties to “submit to binding

arbitration” to determine whether Hunter satisfied the condition precedent in the

CR 2A.12 But the court also observed in its oral ruling “that the conditions

10CPat424.

~ CP at 423-24.

12 CP at 932.

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precedent in the CR 2A have not been met for that parenting plan to be

entered.”13 The court scheduled a review hearing to follow arbitration.

In October, the arbitrator sent the parties a letter defining the scope of

arbitration. Believing it to be detrimental, Cano moved to vacate the CR 2A, to

enter an order stating arbitration was not required, to enter a temporary

parenting plan, and set a trial schedule for Hunter’s motion to modify. The court

declined to consider Cano’s motion until after arbitration.

On November 14, 2018, the arbitrator issued his decision. He concluded

that Hunter substantially complied with the therapy requirements in the CR 2A

and that the parties failed to comply with Judge Garratt’s order requiring entry of

the parenting plan. He decided the “final parenting plan should immediately be

prepared and entered with the court no later than November 30, 2018.”~

Relying on that decision, Judge Rietschel denied Cano’s motion to

vacate the CR 2A agreement, denied her request for a temporary parenting

plan, and ordered that the parties sign the parenting plan in the CR 2A within 10

days. Hunter and Cano signed the 2018 parenting plan on November 30, and

the court entered that parenting plan.

Cano appeals.

13 CP at 956.

14CPat976.

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ANALYSIS

The core of Cano’s argument on appeal is that the court erred by

ordering arbitration and by relying on the arbitrator’s decision when entering the

2018 parenting plan. We review arbitrability decisions for a CR 2A agreement

de novo.~’5 Whether a dispute is arbitrable is determined by the parties’

agreement.16 If a court “‘can fairly say that the parties’ arbitration agreement

covers the dispute, the inquiry ends because Washington strongly favors

arbitration.”17 But any decision by an arbitrator beyond his authorized scope is

subject to vacation.18

The February 2017 CR 2A allows for arbitration:

The parenting plan attached shall be re-drafted into the new family

law forms. If there is any dispute on the final parenting plan to be

entered that issue will be submitted to Timothy G. Edwards as

binding arbitrator. The sole purpose of this provision is to have

the actually [sic] wording of the final parenting plan approved and

entered with the courtj19]

By its terms, the only disputes subject to arbitration are those “on the final

parenting plan” where the parties contest the plan’s “actual[] wording.”2° This

15 In re MarriacieofPascale, 173 Wn. App. 836, 841, 295 P.3d

805 (2013).

16kLat842.

17 ki. at 842 (quoting Davis v. Gen. Dynamics Land Sys., 152 Wn.

App. 715, 718, 217 P.3d 1191 (2009)).

18 Price v. Farmers Ins. Co. of Wash., 133 Wn.2d 490, 500, 946

P.2d 388 (1997).

19 CP at 576.

20 Id.

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narrow arbitration clause does not extend to any dispute over the terms of the

CR 2A agreement apart from the terms of the parenting plan attached to the

CR 2A agreement.

Judge Garratt ordered entry of a final parenting plan and that “[amy

dispute with a final parenting plan will be submitted to Timothy Edwards for

binding arbitration.”21 But this seemingly broad authorization for arbitration is

limited by the scope of the parties’ agreement.22

A few months later, Judge Rietschel considered the parties’ cross

motions to enforce the CR 2A agreement and concluded the condition

precedent was not met. The court did not resolve the dilemma of how to

proceed, though, because

I’m as bound by [Judge Garratt’s] order as everyone else. [T}he

parties have to go back to binding arbitration because there is a

dispute about the parenting plan. What do the parties do now that

the conditions precedent to the agreed parenting plan have not

been met? I think that’s clearly an issue for the arbitrator. [23]

Whether Hunter satisfied the condition precedent and what to do upon

failure to satisfy the condition precedent both stem from the CR 2A agreement,

not the language of the parenting plan. Neither Judge Garratt’s order nor the

CR 2A agreement authorized arbitration for disputes arising out of the

21 CP at 424.

22S~ Price, 133 Wn.2d at 500 (“[T]he arbiter’s authority is limited

by that which is submitted pursuant to the agreement to arbitrate.”); see

also Pascale, 173 Wn. App. at 842 (“The arbitrability of a dispute is

determined by. . . the arbitration agreement.”).

23 CP at 957.

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No. 79376-4-119

agreement itself. Because the parties’ did not agree to arbitrate disputes

arising solely out of the CR 2A agreement, arbitration was not appropriate.

Hunter contends the parties’ agreed to binding arbitration by filing a

notice of settlement. The notice of settlement is a generic document used to

update the court and assist with the court’s management of its caseload and

calendar. It recites, “[The] parties have agreed to resolve all remaining

outstanding issues in this matter through binding arbitration.”24 Hunter cites no

authority for the proposition that an administrative notice from the parties to the

court, at least in this setting, overrides the bargained terms within the CR 2A

agreement itself.

The parties dispute whether the arbitrator exceeded the scope of

arbitration. Because arbitration itself was inappropriate, any decision by the

arbitrator was beyond the proper scope of the arbitration. And even if

arbitration were authorized to resolve the condition precedent, the arbitrator

exceeded his authority by recommending immediate entry of the final parenting

plan by November 30, 2018, and by deciding that Hunter’s residential time

“should be as provided in that final parenting plan” beginning in December

2018.25 Both decisions involve the operation of the CR 2A agreement rather

than the wording of the parenting plan itself. Thus, the arbitrator exceeded the

scope of arbitration and, accordingly, we vacate the arbitrator’s decision.

24 CP at 81.

25 CP at 976.

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No. 79376-4-I/IC

Cano argues the court erred when it entered the 2018 parenting plan

because it relied upon the arbitrator’s improper decision. We review entry of a

parenting plan for abuse of discretion.26 A court abuses its discretion where its

decision rests on untenable factual grounds or was made for untenable reasons

in reliance upon an incorrect legal standard.27

A trial court must independently review all proposed modifications to a

parenting plan.28 The children’s best interests determine the propriety of a

modification to a parenting plan’s residential schedule.29 RCW26.09.187(3)(a)

lists factors a court must consider before setting the residential provisions of a

permanent parenting plan. For a residential schedule, the children’s best

interests “must be based on the statutory factors and the circumstances of the

parties as they exist at the time of trial.”30

The court’s oral ruling simultaneously considered Cano’s motion to

vacate and Hunter’s motion to enforce the CR 2A agreement:

[I] sent you back to arbitration because it was clear that

there was a problem in that [Hunter] had agreed to a counseling

condition that amounted . . . to a condition precedent. .

26 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362

(1997).

27 k~. at 46-47.

28 In re Marriage of Coy, 160 Wn. App. 797, 804, 248 P.3d 1101

(2011).

29 j~ (citing RCW 26.09.260(1)).

30 Littlefield, 133 Wn.2d at 56.

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No. 79376-4-Ill 1

The part of the [arbitrator’s] decision that [I am] most

interested in and [I] did review it in full, was that the arbitrator

found that the first expert referred the parties to the second

counselor Inman. It was the arbitrator’s decision that [Inman]

went beyond [the CR 2A agreement], that the compliance asked

for exceeded the expectation. The arbitrator found that there was

substantial compliance in terms of the counseling by the

petitioner. That is the precise issue that [I] referred to arbitration.

Given that decision, given the prior CR 2As, given the decision of

Judge Garratt, there is no legal basis that I see to vacate any of

the CR 2A.

The review that this court does on parenting plans is

whether they are in the best interest of the children. I take

seriously [Cano’s] position that [she] doesn’t believe that the

parenting plan entered—years ago by now—under the CR 2A is in

the best interest of the children. But it is hard for this court to

make that judgment based on what [it] has in front of it at this

time. What I have is the decision of the arbitrator, the CR 2As,

counseling recommendations, and clearly a long period of time

where [Hunter] has had very little access to his children . . . . I

don’t have enough information before me to make a judgment that

the parenting plan is not in the best interest of the children. And

therefore, I am going to. . . deny the motion to vacate.~31~

We recognize this was an unusual situation, but the court erred by

denying the motion to vacate and entering the parenting plan based on the

record before it. The court relied heavily on the arbitrator’s unauthorized

decision when denying the motion to vacate the CR 2A agreement. Before

entering a parenting plan, a court must consider seven statutory factors.32 The

arbitrator did not consider those factors before ordering entry of the parenting

plan.33 The court relied on the arbitrator’s deficient decision, in addition to other

31 RP (Nov. 19, 2018) at 48-50.

32 RCW 26.09.187(3)(a).

~ CP at 965-76.

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No. 79376-4-1112

evidence, when considering the best interests of the children. And the court did

not expressly weigh all seven factors itself when considering the children’s best

interests. The court appears to assume that the proposed parenting plan is in

the children’s best interests and instead finds insufficient information to unsettle

that assumption.

For these reasons, we vacate the November 19, 2018 order on Cano’s

motion to vacate the CR 2A agreement, entry of the parenting plan, and all

other orders appealed. We remand for further proceedings consistent with this

opinion.

Essentially, this restores the 2009 parenting plan and resets this case to

when Hunter’s motion to modify the 2009 plan was pending. The parties have

stipulated that adequate cause existed for the modification. The parties are

governed by the February 2017 CR 2A agreement. They disagree whether

Hunter’s attendance of more than three months of therapy satisfied the

condition precedent in the CR 2A agreement and whether his refusal to attend

additional therapy repudiates the CR 2A agreement.

On remand, the ultimate goal is for the trial court itself to enter a

permanent parenting plan that serves the best interests of the children at the

time of entry.34 Although the trial court has broad discretion on remand, it

appears the issues to be addressed fall into four categories.

~ Of course, if necessary, the court has the authority on remand

to require the parties to provide adequate and current information.

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First, has Hunter repudiated the CR 2A agreement? If the agreement

has been repudiated, then the parties will be governed by the 2009 parenting

plan subject to any motions to modify the terms of that plan.

Second, if the CR 2A agreement has not been repudiated, then has the

condition precedent of the CR 2A agreement been satisfied? If the condition

has been satisfied, then the court should proceed to address entry of the

parenting plan attached to the CR 2A agreement, including whether that plan is

in the current best interests of the children. If the condition precedent has not

been satisfied, then the court should resolve whether additional delay to pursue

further treatment efforts is warranted or should be abandoned. This decision

must be based upon the current best interests of the children.

Third, at any point when considering the viability of any aspect of the

CR 2A agreement, if the court concludes protecting the current best interests of

the children is inconsistent with and frustrates the purpose of the CR 2A

agreement, then the parties’ obligations under that agreement should be

discharged and the CR 2A set aside.35

~ See Felt v. McCarthy, 78 Wn. App. 362, 367, 898 P.2d 315

(1995), afrd, 130 Wn.2d 203, 922 P.2d 90 (1996) (“The more

fundamental inquiry is whether ‘the assumed possibility of a desired

object to be attained by either party forms the basis on which both

parties enter into it.” (emphasis added) (quoting Weyerhaeuser Real

Estate Co. v. Stoneway Concrete, Inc., 96 Wn.2d 558, 562, 637 P.2d

647 (1981))). “The object must be so completely the basis of the

contract that, as both parties understand, without it the transaction would

make little sense.” (emphasis added) (quoting Wash. State Hor

Producers, Inc. Liquidation Tr. v. Goschie Farms, Inc., 112 Wn.2d 694,

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No. 79376-4-1/14

Fourth, the parties have jointly advised us of recent developments that

resulted in Cano’s motion to modify the 2018 parenting plan and the trial court’s

finding of adequate cause to support a trial on that motion to modify. A trial is

set for 2020. Because we have vacated the 2018 parenting plan, it is up to

Cano to decide how to present her ongoing concerns related to recent events,

including, but not limited to, an amended or new motion by Cano for

modification of the 2009 parenting plan or any new interim parenting plan. Of

course, the trial court on remand has broad discretion to determine how to

structure those proceedings in a manner that promotes and serves full

consideration of the current best interests of the children.

The remaining issues involve attorney fees. Cano assigns error to the

court’s award of attorney fees to Hunter. Based on the attorney fee provision in

the CR 2A agreement, the court awarded Hunter $6,400 in attorney fees for

litigating Cano’s motion to vacate and for the arbitration. The CR 2A agreement

entitles a party to fees “in the event either party is forced to move this Court for

an Order enforcing the agreement as a result of the other part[y’s] conduct.”36

To be entitled to fees, the movant must show the other party’s conduct

necessarily caused them to move to enforce the CR 2A agreement. Because

we have vacated the orders appealed by Cano, we conclude the court’s award

700, 773 P.2d 70 (1989))); see also Felt v. McCarthy, 130 Wn.2d 203,

207-08, 922 P.2d 90 (1996) (quoting RESTATEMENT (SECOND) OF

CONTRACTS § 265 (1979)).

36 CF at 578.

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No. 79376-4-1/15

of fees should be set aside as premature. Once there is a final resolution of the

pending matters on remand, the trial court will have the discretion to consider

an appropriate award of attorney fees. Because the ultimate resolution of this

matter is ongoing, we also decline to award attorney fees on appeal.

Consistent with RAP 18.1(i), the trial court may include reasonable fees on

appeal as part of any award of fees after remand.

Therefore, we reverse and remand for proceedings consistent with this

opinion.

WE CONCUR:

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