In re the Marriage of Kristine J. Coy

• Decision Date: 22 March 2011
• Docket Number: No. 39690–4–II.,39690–4–II.
• Citation: 248 P.3d 1101,160 Wash.App. 797
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Kristine J. COY, Respondent,andMark A. Coy, Appellant.

160 Wash.App. 797

248 P.3d 1101

In re the MARRIAGE OF Kristine J. COY, Respondent,andMark A. Coy, Appellant.

No. 39690–4–II.

Court of Appeals of Washington, Division 2.

March 22, 2011.

Talis Merle Abolins, Campell Dille Barnett, Puyallup, WA, for Appellant.John Arthur Miller, Miller Quinlan and Auter, Fircrest, WA, for Respondent.QUINN–BRINTNALL, J.

[160 Wash.App. 800] ¶ 1 Mark and Kristine Coy dispute the appropriate trial court standard of review of a decision that Kristine¹ made regarding a parenting plan dispute. Under a CR 2A agreement, Kristine purportedly received complete discretionary authority to determine if Mark complied with agreed standards and could receive additional residential time with their daughter, A.C. Kristine denied Mark additional residential time, and Mark appealed her decision to an arbitrator and then to the Pierce County Superior Court, which both ruled in Kristine's favor. Because the CR 2A agreement usurps the trial court's statutory duties and authority to consider modifications to a parenting plan based on the best interests of the child, we hold that the parts of the CR 2A agreement that purport to allow Kristine to unilaterally grant or deny modifications to the parenting plan are unenforceable. Any future changes to the parenting plan must be presented to the trial court under the parenting plan modification statute, RCW 26.09.260. The trial court also improperly awarded Kristine attorney fees. We reverse and remand.

FACTS

¶ 2 Mark and Kristine were married in October 1996; had a daughter, A.C., in 2000; and separated in February 2002. The trial court entered final dissolution orders, including a permanent parenting plan, on July 19, 2002. The parenting plan designated Kristine as A.C.'s primary residential parent; established joint decision-making authority for major parenting decisions; and granted Mark a minimum of one weekday and alternate weekend residential time with A.C. throughout the year, certain holidays, and “additional time” in the summer. Clerk's Papers (CP) at 13.

¶ 3 From February 2005 through August 2007, Mark continually sought more residential and visitation time with A.C. He filed multiple parenting plan modification motions that the trial court denied. During this time, Mark and Kristine also attended two mediations wherein they agreed to minor modifications to the parenting plan's residential visitation schedule. The trial court ultimately approved and memorialized these changes in court orders. ² One other change to the parenting plan was a shift in the dispute resolution process for future conflicts over the plan from “counseling” to “[b]inding arbitration.” Compare CP at 17 with CP at 56. The trial court made this change in August 2007, when entering a modified parenting plan order. This modified parenting plan expressly stated that the parties' retained the right to have the dispute resolution process reviewed by the superior court. The August 2007 parenting plan is the most recent parenting plan that the trial court entered; it retained Kristine as A.C.'s primary residential parent and continued to assign joint decision-making authority for major decisions on A.C.'s upbringing.

¶ 4 In early 2008, Kristine moved from Tacoma to University Place, Washington, a move that brought her closer to Mark's residence. In March 2008, Mark filed an objection to Kristine's relocation of A.C. and filed a proposed modified parenting plan in which he sought primary residential parenting status. The trial court set a hearing for August 28, 2008, to consider issues related to the relocation.

¶ 5 On August 28, a pro tern judge held a mediation with the parties and their attorneys. This mediation resulted in a handwritten CR 2A agreement signed by the parties and their attorneys, wherein they agreed to change the August 2007 parenting plan by (1) increasing Mark's weekend residential time to include time through Monday morning, instead of ending it on Sunday evening; (2) changing Mark's specified weekly Wednesday evening residential time to Thursday evening; and (3) adding nonresidential visitation time for Mark from the end of the school day to 5:00 pm on Wednesdays.

[160 Wash.App. 802] ¶ 6 In addition, the CR 2A agreement added requirements. If Mark complied with these additional requirements over the next six to twelve months, he could receive additional weekly overnight residential time. The parties assigned Kristine complete discretionary authority to determine whether Mark complied with the new requirements and to implement any additional residential schedule rights, but the CR 2A agreement provided that Mark could appeal Kristine's decision to binding arbitration. The parties also stated in the agreement that “neither party will bring further proceedings in court except as provided in this agreement.” CP at 144. Kristine filed a copy of the signed CR 2A agreement with the trial court in November 2008.

¶ 7 Several months later, because Kristine felt that Mark did not fulfill the requirements for additional residential time outlined in the CR 2A agreement, she denied Mark additional residential visits. Mark disagreed with her decision and exercised his rights under the CR 2A agreement to have an arbitrator review Kristine's decision.

¶ 8 In March 2009, Rebecca Reeder presided over the arbitration and prepared findings of fact and conclusions of law to file with the trial court. Reeder concluded that the CR 2A agreement allowed Kristine to determine Mark's compliance with the agreed standards at her discretion and that “the court should make provisions for a future parenting plan for the parties [sic] minor children of the marriage consistent with the express agreement contained in the Parenting Plan and subsequent CR 2A agreement.” 2 CP at 218. Reeder decided that Mark had not complied with the requirements of the CR 2A agreement and that Kristine's decision to deny Mark more residential time should be honored.

¶ 9 When Reeder prepared final trial court orders for submission, Mark and Kristine disputed whether an arbitrator had the authority to enter findings of fact and conclusions of law or if an arbitrator could only enter a ruling. Mark asserted that the distinction impacts the standard of review that the trial court uses to review the arbitrator's decisions. Ultimately, in mid–2009, the trial court (1) denied Mark's request to review de novo the arbitrator's decisions; and (2) adopted the arbitrator's findings, conclusions, and ruling, in part because the parties had used “binding arbitration of their own volition.” CP at 204. Subsequently, Kristine sought, and the trial court awarded her, $2,408 in attorney fees. The trial court based attorney fees on (1) the parties' financial resources, under RCW 26.09.140; and (2) Mark's use or frustration of the dispute resolution process without good reason, under RCW 26.09.184(4)(d).³ Mark timely appeals.⁴

ANALYSIS

¶ 10 The parties dispute the appropriate standard of review that the trial court should use to review the issues in this case. Mark argues that under the parenting plan, statutory provisions, and case law, he has a right to a de novo review of the results of a parenting plan dispute resolution process. Kristine contends that the trial court should review the arbitrator's findings of fact and conclusions of law for substantial evidence to determine if she (Kristine) abused her discretion when denying Mark additional residential time.

¶ 11 The parties' arguments presuppose the validity of the CR 2A agreement provisions granting Kristine authority to, in effect, grant or deny modification to the parenting plan's residential schedule at her discretion. But parties cannot stipulate to a process that eliminates the trial court's consideration of parenting plan modifications under the best interests of the child standard. Accordingly, we strike the CR 2A agreement provisions that relate to Kristine's purported ability to modify the parenting plan without a trial court inquiry or review because they are unenforceable.

¶ 12 CR 2A provides parties with an opportunity to enter into stipulated agreements that can be enforced if they are “made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.” The purpose of CR 2A is to “avoid ... disputes and to give certainty and finality to settlements and compromises, if they are made.” Eddleman v. McGhan, 45 Wash.2d 430, 432, 275 P.2d 729 (1954). But parties cannot enter into stipulations on impermissible subject matters, including the jurisdiction of a court. Barnett v. Hicks, 119 Wash.2d 151, 161, 829 P.2d 1087 (1992); Gallagher v. Sidhu, 126 Wash.App. 913, 920, 109 P.3d 840 (2005).

¶ 13 After a trial court enters a final parenting plan, and neither party appeals it, the plan can be modified only under RCW 26.09.260. Schuster v. Schuster, 90 Wash.2d 626, 628–29, 585 P.2d 130 (1978); In re Parentage of Schroeder, 106 Wash.App. 343, 350, 22 P.3d 1280 (2001). This statute explicitly requires that a trial court consider and make any modifications to a parenting plan based on what is in the best interests of the child. RCW 26.09.260(1). A trial court cannot delegate its authority to modify a parenting plan. See Kirshenbaum v. Kirshenbaum, 84 Wash.App. 798, 807, 929 P.2d 1204 (1997).⁵ Modifications are any increases or reductions to the rights originally granted to a party. Rivard v. Rivard, 75 Wash.2d 415, 418, 451 P.2d 677 (1969). Any modification, no matter how slight, requires an independent inquiry by the trial court. Schroeder, 106 Wash.App. at 352, 22 P.3d 1280; In re Parentage of Smith–Bartlett, 95 Wash.App. 633, 640, 976 P.2d 173 (1999).

¶ 14 Here, Mark and Kristine entered into a CR 2A agreement wherein they purportedly established a process for modifying the parenting plan without complying with a controlling statute, RCW...