In re Marriage of Possinger

• Decision Date: 19 March 2001
• Docket Number: No. 45621-1-I.,45621-1-I.
• Citation: 19 P.3d 1109,105 Wn. App. 326,105 Wash. App. 326
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Jeffrey K. POSSINGER, Appellant, and Dawn L. Possinger, Respondent.

19 P.3d 1109

105 Wn. App. 326

105 Wash. App. 326

In re the MARRIAGE OF Jeffrey K. POSSINGER, Appellant, and

Dawn L. Possinger, Respondent.

No. 45621-1-I.

Court of Appeals of Washington, Division 1.

March 19, 2001.

Jeffrey Possinger, Duvall, for Appellant.

Gregory M. Miller, Seattle, for Respondent.

KENNEDY, J.

To resolve this appeal we must determine whether under the Parenting Act of 1987 the superior court retains its equitable power to enter a temporary or interim parenting plan at the time of entry of a decree of dissolution of marriage, rather than a permanent parenting plan, and to reserve final disposition of parenting issues for a specified period of time pending significant changes that are expected to occur in the lives of the parents. To pose essentially the same question in slightly different terms, we must determine whether the court has the authority under the Parenting Act to adopt a permanent parenting plan that contains a residential schedule that will remain in effect for a specified period of time pending significant changes that are expected to occur in the lives of the parents, and then, at the end of that period of time, revisit the plan in order to make a final disposition of the parenting issues, applying the criteria contained in RCW 26.09.187 for establishing permanent parenting plans rather than the criteria contained in RCW 26.09.260 governing modification of parenting plans. Regardless of which way the question is posed, we answer it in the affirmative. The trial court did not exceed its authority under the Parenting Act by granting the father primary residential care of the parties' daughter for one year until she entered elementary school, and reserving entry of a final residential schedule until that time. Accordingly, the trial court did not err by applying the criteria for establishing a permanent parenting plan at the end of that year, rather than the criteria contained in the modification statute, in granting the mother primary residential care of the parties' daughter. Affirmed.

FACTS

Jeffrey K. Possinger and Dawn Forsythe Possinger were married in 1992, and their daughter Anna was born on February 2, 1993. The parties separated in March of 1996, after which they shared residential care of Anna by informal agreement.

In 1997, Jeffrey Possinger filed for dissolution of the marriage. The parties were able to resolve all the issues between them except as to the parenting of Anna. On March 10, 1998, following a three-day trial, the court dissolved the parties' marriage and entered a parenting plan containing a preschool residential schedule for Anna, who was then five years old, and reserving the decision on the school schedule until July 1999, just prior to Anna's entry into first grade.

At the time of trial, Dawn Possinger worked at Group Health from approximately 3:30 to 11 p.m., while Jeffrey Possinger attended law school full-time. Jeffrey cared for Anna during the evenings while Dawn worked, and Dawn took Anna back to her apartment at night and kept her until shortly before it was time for Dawn to go to work the next day. The parties divided weekend residential time evenly.

At the time of the dissolution trial, Dawn Possinger expressed her desire to change her work schedule to a day shift. And the court noted that "[t]here was talk of ... moving" by one or both of the parents. Clerk's Papers at 624 (Oral Decision). Jeffrey Possinger had not yet finished his first year of law school, and his future plans depended heavily upon whether he succeeded in law school or not.¹ After reviewing the circumstances of the parties, their respective testimonies, and the testimony of other witnesses including a family court caseworker, the court stated, "When I took your various scenarios and tried to work them out, and figure what is going to happen with this kid, it was very, very difficult for the Court to do." Id. The court noted the parties' respective work and school schedules were subject to change, there was mention of one or both parents moving, the child was due to begin kindergarten soon, and the child would begin first grade in approximately one year.

The court then stated,

What the evidence has shown is that the current residential plan is workable and has been workable; that the alternative that has been proposed [by the mother] is not workable in this Court's assessment. I say this because it's clear to me that these individuals are in somewhat of a transitional period, and I cannot get from what has been presented to the Court a clearer determination of what should be done on a long-term basis for this child.

So therefore,.. I am going to adopt the parenting plan proposed by the husband for a one year period of time until the child is in the first grade.

Id. at 626-27.

The court further explained:

I would like you to have this matter reviewed by this Court at the end of that year's period of time.

I am going to require that you go through mediation first before you come in for a review hearing. And what I want from you at that time, at that hearing, is some concrete plan as to how your schedules, your employment schedules, your child care, your kindergarten, your first grade, are going to work for this child.

Id. at 627-28.

Accordingly, in the residential schedule portion of the 1998 parenting plan, under the preschool subheading, the court ordered that "[p]rior to enrollment in school, the child shall reside with the father, except for [scheduled residential time with the mother that approximated the same schedule the parties had been utilizing prior to trial.]" Under a school schedule subheading, the order provided:

The court reserves decision on the school schedule until July, 1999. Prior to that date, the parents shall participate in mediation to resolve the school schedule for the first grade and thereafter. In the event the parties do not reach agreement in mediation, a hearing shall be conducted by the undersigned judge. This department retains jurisdiction for this issue.

Clerk's Papers at 12-13 (Parenting Plan). The order further provided that no presumption would be drawn from the designation of the father as the parent with whom Anna would reside most of the time pending the decision with respect to residential care to be made in July 1999.² Neither party objected on the record to the court's 1998 parenting decisions and no appeal was filed.

As contemplated by the 1998 parenting order, a hearing was held on July 19, 20 and 27, 1999, on the issue of Anna's post-kindergarten residential schedule. At the outset of the hearing, Jeffrey Possinger's counsel stated that "the very clear message I received from Your Honor is the only things you wanted to hear today is evidence and testimony regarding establishing the residential schedule for the upcoming school year." Report of Proceedings at 2. The hearing proceeded, without objection as to its purpose and effect.³

On August 16, 1999, the court rendered its oral decision, which is reflected in the written findings entered on October 11, 1999-summarized as follows: (1) Since entry of the decree of dissolution, Jeffrey Possinger had remarried and moved from his parents' residence into a home with his wife; (2) Dawn Possinger had also relocated and shared a residence with her grandmother in Poulsbo; (3) Subsequent to the decree of dissolution, Dawn had changed her work schedule from a night shift to a day shift; (4) as between the parents, Dawn was found to be "more capable of attending to the child's emotional needs given her development level and more capable of attending to the development of an appropriate interpersonal, parental relationship with both the father and extended family members[;]" and (5) regarding the parents' employment schedules, "the parties are fairly evenly matched." Clerk's Papers at 560-61 (Findings of Fact and Conclusions of Law).

The court then found, "[b]ased upon the criteria set forth in RCW 26.09.187" that "primary residential care should be awarded to the mother, as set forth within the Parenting Plan, which is entered simultaneously[.]" Id. at 561. A permanent parenting plan designating Dawn Possinger as the primary residential parent, allocating education and day-care decisions to her, and granting scheduled residential time to Jeffrey Possinger was also entered.

Jeffrey Possinger appeals, contending that the court exceeded its "jurisdiction" by postponing entry of a permanent residential schedule until the child entered school, so that the portions of the 1998 parenting plan relating to the postponement are "void" and should be treated as mere "surplusage", resulting in the preschool residential schedule being the permanent residential schedule. Jeffrey thus reasons that the 1998 parenting plan was a permanent plan that could only be changed by applying the standards contained in RCW 26.09.260 governing modifications, so that the trial court erred in applying the criteria found in RCW 26.09.187 governing initial parenting plans in reaching the parenting decisions made in August of 1999.

DISCUSSION

We first note that that if, as contended by Jeffrey Possinger, the 1998 parenting order was a permanent parenting plan, his challenge to the court's authority to postpone decisionmaking with respect to the permanent residential schedule is not timely because it was not appealed within 30 days following its entry. To the extent that the 1998 parenting order was a temporary or interim order, the challenge is untimely because no objection was raised in the trial court at the time of entry in 1998, nor in 1999, for that matter, until Jeffrey Possinger filed a motion for reconsideration following the decision in 1999. See RAP 2.5(a). Nor is Jeffrey Possinger's challenge to the trial court's "jurisdiction" a sufficient basis for untimely review under RAP 2.5. See Little v. Little, 96 Wash.2d 183, 195-98, 634 P.2d 498 (1981)

(trial court has equitable power to make a...