### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter ofthe 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### ) UNPUBLISHED OPINION CHRISTIE JULIE MARIE CANO, 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 ofthe children. Here, the trial court did not adequately considerthe statutorily mandated factors orthe children’s current needs. Rather, the court relied on an invalid arbitrator’s decision and an underdeveloped factual record to orderthe entry ofa new parenting plan. Therefore, we vacate the arbitrator’s decision and the court’s entry ofthe parenting plan, and we remand for proceedings consistentwith this opinion. FACTS Ron Hunterand Christie Cano dissolved their marriage in 2009. The court adopted a parenting plan fortheirtwo children. Theirson and daughter
are now 17 and 11, respectively. Theirson suffers from a medical conditionNo. 79376-4-1/2

that causes frequent migraines and requires medication. The 2009 parenting plan requires a 50-50 split ofcertain medical expensesforthe children. In March of2016, Cano sought reimbursement ofchild-related expenses from Hunter. In June of2016, Hunter petitioned to modifythe 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 agreementtemporarily limited Hunter’s time with his children from overnights every other Saturdayto eight hours every other Saturday, required the immediate start offamily counseling, and allowed forthe use ofan arbitratorto 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 precedentto entering the new parenting plan attached to the agreement: Attached hereto are the provisions for [the] final parenting plan thatwill be entered with the court after Loran lnman has completed his therapywith the parties and children. This plan or portions ofthis plan may be implemented by Loran Inman priorto his completion ofthe therapy at his discretion. Both parents shall cooperate and followthe 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 Inman the powerto “determine the structure ofthe therapyto re-unifythe father’s relationship with the children.”2 The agreement “contemplated thatthe therapywith 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 attorneyfees. Hunter and his children soon began therapywith Inman. After more than three months oftherapy, 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 pointvery clear thatthey do not desire to have contactwith theirfather, and do not enjoythe contactthatthey do have.”6 Counseling continued. In Octoberof2017, Inman concluded, “[M]ore intensive therapy is required to benefitthis 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 Hunterand his children more frequently, he discontinued therapy and referred them to a newtherapist. 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 lettersaying that Cano would ‘not allow unsupervised visitation between Mr. Hunterand the children” until ‘the parties and children resume counseling.”9 The next day, Hunterfiled a motion to enforce the portion ofthe CR 2A regarding visitation.

8 This incident occurred after Huntertook 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 letyour mom turn

fuckin’ againstyour 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 wantto be with my own flesh and

blood? Fucking culture then, whatever bullshit your mom tells you. Son: Yeah. You wantto be with your own flesh

and blood, but you yell at us. CP at 569.

~ CP at 343.

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CommissionerJudson granted the motion and ordered thatthe parties follow the residential placement provisions ofthe CR 2A. The court also scheduled a review hearing forJanuary 2018 to see whether Hunter resumed therapy. Hunter brieflysaw a newtherapist in February and March of2018 but stopped, apparently because itwas not covered by insurance. In May, Hunter alleged that Cano denied his lastthree visits and moved to enforce the residential time provisions ofthe CR 2Ato find Cano in contempt. Judge Garratt heard the motion. The courtfound Cano in contempt. Judge Garratt’s order required compliance with the arbitration provision ofthe 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 2Awithin 60 days ofthis order unless superseded byfurther court order. “11 On July 31, 2018, Hunterfiled a motion to enforce the CR 2A and enter the parenting plan. In response, Cano moved to enforce the therapy provisions ofthe CR 2A. Judge Rietschel heard argument on the motions. Relying on Judge Garratt’s order, the court ordered the parties to “submitto binding arbitration” to determinewhether Huntersatisfied the condition precedent in the CR 2A.12 Butthe court also observed in its oral ruling “thatthe conditions

10CPat424.

~ CP at423-24. 12 CP at 932.

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precedent in the CR 2A have not been metforthat parenting plan to be entered.”13 The court scheduled a review hearing to follow arbitration. In October, the arbitratorsentthe parties a letter defining the scope of arbitration. Believing itto be detrimental, Cano moved to vacate the CR 2A, to enteran order stating arbitration was not required, to entera temporary parenting plan, and set a trial schedule for Hunter’s motion to modify. The court declined to consider Cano’s motion until afterarbitration. On November 14, 2018, the arbitrator issued his decision. He concluded that Huntersubstantially complied with the therapy requirements in the CR 2A and thatthe parties failed to complywith 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 laterthan November 30, 2018.”~ Relying on that decision, Judge Rietschel denied Cano’s motion to vacate the CR 2A agreement, denied her requestfora temporary parenting plan, and ordered thatthe parties sign the parenting plan in the CR 2Awithin 10 days. Hunterand 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 thatthe court erred by ordering arbitration and by relying on the arbitrator’s decision when entering the 2018 parenting plan. We review arbitrability decisions fora CR 2A agreement de novo.~’5 Whethera dispute is arbitrable is determined bythe parties’ agreement.16 Ifa court “‘can fairly saythatthe parties’ arbitration agreement
covers the dispute, the inquiry ends because Washington stronglyfavors arbitration.”17 But any decision by an arbitrator beyond his authorized scope is subjectto vacation.18 The February2017 CR 2A allows forarbitration: The parenting plan attached shall be re-drafted into the newfamily lawforms. Ifthere 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 ofthis provision is to have the actually [sic] wording ofthe final parenting plan approved and entered with the courtj19] By its terms, the only disputes subjectto arbitration are those “on the final parenting plan” where the parties contestthe 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. ofWash., 133 Wn.2d 490, 500, 946 P.2d 388 (1997). 19 CP at 576. 20 Id.

7No. 79376-4-1/8

narrow arbitration clause does not extend to any dispute overthe terms ofthe CR 2A agreement apartfrom the terms ofthe parenting plan attached to the CR 2A agreement. Judge Garratt ordered entry ofa final parenting plan and that “[amy dispute with a final parenting plan will be submitted to Timothy Edwards for binding arbitration.”21 Butthis seemingly broad authorization for arbitration is limited bythe scope ofthe parties’ agreement.22 Afew months later, Judge Rietschel considered the parties’ cross motions to enforce the CR 2A agreement and concluded the condition precedentwas not met. The court did not resolve the dilemma of howto proceed, though, because I’m as bound by [Judge Garratt’s] order as everyone else. [T}he parties have to go backto binding arbitration because there is a dispute aboutthe parenting plan. What do the parties do nowthat the conditions precedentto the agreed parenting plan have not been met? I thinkthat’s clearly an issue forthe arbitrator. [23] Whether Huntersatisfied the condition precedent and what to do upon failure to satisfythe condition precedent both stem from the CR 2A agreement, notthe language ofthe parenting plan. NeitherJudge Garratt’s order northe CR 2A agreement authorized arbitration fordisputes arising out ofthe

21 CP at424. 22S~ Price, 133 Wn.2d at 500 (“[T]he arbiter’s authority is limited bythatwhich is submitted pursuantto the agreementto arbitrate.”); see also Pascale, 173 Wn. App. at 842 (“The arbitrability ofa dispute is determined by.

. . the arbitration agreement.”). 23 CP at 957.

8No. 79376-4-119

agreement itself. Because the parties’ did not agree to arbitrate disputes arising solely out ofthe CR 2A agreement, arbitration was not appropriate. Hunter contends the parties’ agreed to binding arbitration byfiling a notice ofsettlement. The notice ofsettlement is a generic document used to update the court and assistwith the court’s management of its caseload and calendar. It recites, “[The] parties have agreed to resolve all remaining outstanding issues in this matterthrough binding arbitration.”24 Hunter cites no authorityforthe 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 whetherthe arbitratorexceeded the scope of arbitration. Because arbitration itselfwas inappropriate, any decision bythe arbitratorwas beyond the proper scope ofthe arbitration. And even if arbitration were authorized to resolve the condition precedent, the arbitrator exceeded his authority by recommending immediate entry ofthe final parenting plan by November30, 2018, and by deciding that Hunter’s residential time “should be as provided in thatfinal parenting plan” beginning in December 2018.25 Both decisions involve the operation ofthe CR 2A agreement rather than the wording ofthe parenting plan itself. Thus, the arbitratorexceeded the scope ofarbitration and, accordingly, we vacate the arbitrator’s decision.

24 CP at 81. 25 CP at 976.

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Cano argues the court erred when it entered the 2018 parenting plan because it relied upon the arbitrator’s improperdecision. We review entry ofa parenting plan for abuse ofdiscretion.26 A court abuses its discretion where its decision rests on untenable factual grounds orwas made for untenable reasons in reliance upon an incorrect legal standard.27 Atrial court must independently review all proposed modifications to a parenting plan.28 The children’s best interests determine the propriety ofa 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 ofa permanent parenting plan. For a residential schedule, the children’s best interests “must be based on the statutoryfactors and the circumstances ofthe parties as they exist atthe time oftrial.”30 The court’s oral ruling simultaneously considered Cano’s motion to vacate and Hunter’s motion to enforce the CR 2A agreement:

[I] sentyou backto arbitration because itwas clearthat 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~. at46-47. 28 In re Marriage ofCoy, 160 Wn. App. 797, 804, 248 P.3d 1101 (2011).29j~ (citing RCW26.09.260(1)). 30 Littlefield, 133 Wn.2d at 56.

10No. 79376-4-Ill 1

The part ofthe [arbitrator’s] decision that [I am] most interested in and [I] did review it in full, was thatthe arbitrator found thatthe first expert referred the parties to the second counselor Inman. Itwas the arbitrator’s decision that [Inman] went beyond [the CR 2A agreement], thatthe compliance asked forexceeded the expectation. The arbitratorfound thatthere was substantial compliance in terms ofthe counseling bythe 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 reviewthatthis court does on parenting plans is whetherthey are in the best interest ofthe children. I take seriously [Cano’s] position that [she] doesn’t believe thatthe parenting plan entered—years ago by now—underthe CR 2A is in the best interest ofthe children. But it is hard forthis courtto make thatjudgment based on what [it] has in front of it atthis time. What I have is the decision ofthe arbitrator, the CR 2As, counseling recommendations, and clearly a long period oftime where [Hunter] has had very little access to his children

. . . . I don’t have enough information before me to make ajudgment that the parenting plan is not in the best interest ofthe children. And therefore, I am going to.

. . denythe 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 considerseven statutoryfactors.32 The arbitrator did not considerthose factors before ordering entry ofthe parenting plan.33 The court relied on the arbitrator’s deficient decision, in addition to other

31 RP (Nov. 19, 2018) at48-50. 32 RCW 26.09.187(3)(a).

~ CP at 965-76.

11No. 79376-4-1112

evidence, when considering the best interests ofthe children. And the court did not expresslyweigh all seven factors itselfwhen considering the children’s best interests. The court appears to assume thatthe proposed parenting plan is in the children’s best interests and instead finds insufficient information to unsettle that assumption. Forthese reasons, we vacate the November 19, 2018 order on Cano’s motion to vacate the CR 2A agreement, entry ofthe parenting plan, and all otherorders appealed. We remand forfurther proceedings consistent with this opinion. Essentially, this restores the 2009 parenting plan and resets this case to when Hunter’s motion to modifythe 2009 plan was pending. The parties have stipulated that adequate cause existed forthe modification. The parties are governed bythe February2017 CR 2A agreement. They disagree whether Hunter’s attendance of more than three months oftherapy 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 forthe trial court itselfto entera permanent parenting plan that serves the best interests ofthe children atthe time ofentry.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? Ifthe agreement has been repudiated, then the parties will be governed bythe 2009 parenting plan subjectto any motions to modifythe terms ofthat plan. Second, ifthe CR 2A agreement has not been repudiated, then has the condition precedentofthe CR 2A agreement been satisfied? Ifthe condition has been satisfied, then the court should proceed to address entry ofthe parenting plan attached to the CR 2A agreement, including whetherthat plan is in the current best interests ofthe children. Ifthe condition precedent has not been satisfied, then the court should resolve whether additional delayto pursue furthertreatment efforts is warranted orshould be abandoned. This decision must be based upon the current best interests ofthe children. Third, at any pointwhen considering the viability ofany aspect ofthe CR 2A agreement, ifthe court concludes protecting the current best interests of the children is inconsistentwith and frustrates the purpose ofthe CR 2A agreement, then the parties’ obligations underthat 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 ofa desired objectto be attained by either partyforms 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 completelythe basis ofthe contractthat, as both parties understand, without itthe 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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Fourth, the parties havejointly advised us of recent developments that resulted in Cano’s motion to modifythe 2018 parenting plan and the trial court’s finding ofadequate cause to support a trial on that motion to modify. Atrial is setfor2020. Because we have vacated the 2018 parenting plan, it is up to Cano to decide howto present herongoing concerns related to recent events, including, but not limited to, an amended or new motion by Cano for modification ofthe 2009 parenting plan orany new interim parenting plan. Of course, the trial court on remand has broad discretion to determine howto structure those proceedings in a mannerthat promotes and serves full consideration ofthe current best interests ofthe children. The remaining issues involve attorney fees. Cano assigns errorto the court’s award ofattorneyfees to Hunter. Based on the attorneyfee provision in the CR 2A agreement, the court awarded Hunter$6,400 in attorneyfees for litigating Cano’s motion to vacate and forthe arbitration. The CR 2A agreement entitles a partyto fees “in the event either party is forced to move this Courtfor
an Order enforcing the agreement as a result ofthe other part[y’s] conduct.”36 To be entitled to fees, the movant must showthe 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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offees should be set aside as premature. Once there is a final resolution ofthe pending matters on remand, the trial courtwill have the discretion to consider
an appropriate award ofattorneyfees. Because the ultimate resolution ofthis matter is ongoing, we also decline to award attorneyfees on appeal. Consistentwith RAP 18.1(i), the trial court may include reasonable fees on appeal as part ofany award offees after remand. Therefore, we reverse and remand for proceedings consistent with this opinion.

WE CONCUR:

15