Cardwell v. Cardwell

• Decision Date: 02 February 2021
• Docket Number: No. 37531-5-III,37531-5-III
• Citation: 479 P.3d 1188,16 Wash.App.2d 90
• Parties: In the MATTER OF the MARRIAGE OF: Paul CARDWELL, Respondent, and Regan Cardwell, Appellant.
• Court: Washington Court of Appeals

16 Wash.App.2d 90

479 P.3d 1188

In the MATTER OF the MARRIAGE OF: Paul CARDWELL, Respondent, and Regan Cardwell, Appellant.

No. 37531-5-III

Court of Appeals of Washington, Division 3.

FILED FEBRUARY 2, 2021

Craig A. Mason, Mason Law, 1707 W Broadway Ave., Spokane, WA, 99201-1817, for Appellant.

Barbara J. Black, Attorney at Law, PO Box 1118, Moses Lake, WA, 98837-0169, for Respondent.

PUBLISHED OPINION

Fearing, J.

If such was the intent of the legislature, the grammar used defeated that purpose. This concurrence is written to bring this specific situation to the attention of the legislature and to suggest the desirability of adding a grammarian to their technical staff. In re Estate of Kurtzman, 65 Wash.2d 260, 269, 396 P.2d 786 (1964) (Hill, J., concurring).

No one knows when and when not to use a comma. Kay Brossard, Washington State comma expert.

¶ 1 The mother of two daughters, Regan Cardwell, appeals denial of her request for a minor modification of the girls’ residential schedule after her change in domicile returned her to the children's home city. The appeal requires us to enter a wonderland of grammatical conventions in order to construe an ambiguous statute addressing the grounds on which a parent may gain a minor modification. We decline to apply the ostensible last antecedent rule and interpret the controlling statute, RCW 26.09.260(5)(b), to require that a parent who moves residences must show that the current schedule is impractical in order to procure a modification. We agree with the trial court that the mother failed in her showing.

FACTS

¶ 2 Regan Cardwell and Paul Cardwell beget two daughters, born respectively in 2006 and 2008. The couple separated in 2010, at which time Regan fled with the children to Alabama and hid them from Paul. Paul filed for marital dissolution, gained custody of the two children, and eventually brought the daughters to Moses Lake. Regan than moved to Spokane.

¶ 3 A parenting plan in the Grant County dissolution proceeding entered March 15, 2013 currently governs the respective parents’ residential rights. Pursuant to the plan, the girls primarily reside with Paul Cardwell in Moses Lake. Paul and the daughters reside in a home with Paul's parents. Regan Cardwell has visitation on alternating weekends, two weeks each month during the summer, and designated holidays and breaks. The parties render major decisions jointly.

¶ 4 In 2014 and 2016, Regan Cardwell sought major modifications of the parenting plan that would afford her a majority of residential time with the daughters. She withdrew the first request, and the trial court denied the second request. This court affirmed the trial court's second denial, and the Supreme Court denied review of this court's decision.

¶ 5 In August 2019, Regan moved from Spokane to Moses Lake.

PROCEDURE

¶ 6 In October 2019, Regan Cardwell filed a petition for modification of the parenting plan. She sought a major modification, or, in the alternative, a minor modification of the parenting plan. She sought a major modification of the parenting plan due to allegations of abuse on the part of the children's grandmother, Paul's mother. Regan's recent move to Moses Lake served as the basis for a minor modification. Her pleadings focused on procuring a major modification.

¶ 7 Under the minor modification request, Regan Cardwell requested that her time with the daughters be increased to nearly equal residential time with Paul. The girls would reside with Regan from Monday at 3 p.m. through Wednesday at 3 p.m. The daughters would also reside with Regan on alternating weekends from Friday at 5 p.m. to Sunday at 5 p.m. The proposed plan would modify the summer schedule to alternating weeks.

¶ 8 The Grant County Superior Court commissioner conducted an adequate cause hearing to consider the requested modifications. At the time of the hearing, the court commissioner ruled on Regan Cardwell's request for a major modification and entered an order denying adequate cause for the major modification.

¶ 9 RCW 26.09.260(5)(b) controlled Regan's request for a minor modification because of her move to Moses Lake. The language of RCW 26.09.260(5)(b) creates an ambiguity as to whether the nonresidential parent who moves must show that the present residential schedule is impractical to follow because of the move. Regan asked the court commissioner to construe the statute such that she need not establish impracticality. She additionally contended that she showed impracticality.

¶ 10 The court commissioner issued a letter ruling, on which we cannot improve. The court construed RCW 26.09.260(5)(b) to require the nonresidential parent to show that her move to a new city rendered the current parenting plan impractical to follow. The court commissioner also concluded that Regan Cardwell failed to submit any evidence that her move caused the residential schedule to become impractical. The commissioner denied a request from Paul Cardwell for an award of reasonable attorney fees and costs.

LAW AND ANALYSIS

¶ 11 On appeal, Regan Cardwell repeats the two arguments raised before the court commissioner. She contends that, under RCW 26.09.260(5)(b), she need not show that her change of residence renders the residential schedule in the parenting plan impractical to follow. In the alternative, she argues that the term "impractical" as used in the statute should be interpreted to mean "unreasonable or unwise" such that her request for modification should still be granted. On appeal, Paul Cardwell asks for an award of reasonable attorney fees and costs.

¶ 12 Paul Cardwell asks that we bestow deference to the trial court ruling. Nevertheless, some of the court commissioner's ruling depended on an interpretation of RCW 26.09.260(5)(b). We apply de novo review to statutory construction. Williams v. Tilaye , 174 Wash.2d 57, 61, 272 P.3d 235 (2012) ; In re Marriage of Hansen , 81 Wash. App. 494, 498, 914 P.2d 799 (1996). The court commissioner did find as a fact that Regan Cardwell failed to show impracticality to follow the current parenting plan. To the extent this ruling is based on underlying facts or the lack thereof, we review the determination for an abuse of discretion. In re Parentage of Jannot , 149 Wash.2d 123, 126, 65 P.3d 664 (2003).

Construction of RCW 26.09.260(5)(b)

¶ 13 RCW 26.09.260 controls the modification of a parenting plan. In re Marriage of Shryock , 76 Wash. App. 848, 852, 888 P.2d 750 (1995). The language of RCW 26.09.260, consistent with the Uniform Marriage and Divorce Act, establishes a strong presumption against modification and in favor of continuity. In re Marriage of Maclaren , 8 Wash. App. 2d 751, 770, 440 P.3d 1055 (2019) ; In re Marriage of McDole , 122 Wash.2d 604, 610, 859 P.2d 1239 (1993). Before a full hearing on a petition to modify a residential schedule, the petitioner must demonstrate that adequate cause exists. In re Marriage of Tomsovic , 118 Wash. App. 96, 104, 74 P.3d 692 (2003).

¶ 14 Although the narrow provisions of RCW 26.09.260(5)(b) govern this appeal, we quote other sections of the lengthy RCW 26.09.260 to provide a background for subsection (5)(b):

(1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. ...

(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:

(a) The parents agree to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;

(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

....

(5) The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2) of this section, if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and :

....

(b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow .

(Emphasis added.) We question whether a parent seeks a minor, as opposed to a major, modification, when she essentially seeks joint custody, but Paul Cardwell does not argue this point. Paul also concedes that Regan Cardwell presents a substantial change of circumstances under RCW 26.09.260(5) because of her move from Spokane to Moses Lake. So we focus on the narrow terms of RCW 26.09.260(5)(b).

¶ 15 The poor drafting of RCW 26.09.260(5)(b) creates the ambiguity of whether the phrase "which makes the residential schedule in the parenting plan impractical to follow" at the end of the subsection applies to both the clauses "a change of residence of the [nonresidential] parent" and "an involuntary change in work schedule by a [nonresidential] parent" or only the latter of the two clauses. We label the phrase "which makes the residential schedule in the parenting plan impractical to follow" as the modifying or qualifying phrase. We brand the two preceding phrases as antecedents. A "change in work schedule" is the last antecedent. Note...