Of v. Fairfax

• Decision Date: 19 December 2013
• Docket Number: No. 88029–8.,88029–8.
• Citation: 314 P.3d 1109,179 Wash.2d 411
• Court: Washington Supreme Court
• Parties: In the Matter of the Parentage of C.M.F. State of Washington, Plaintiff, v. Jonathan Graham Fairfax, Alleged Father, Respondent, Travis James Riehl, Presumed Father, Defendant, and Amanda Clare Simpson, Mother, Petitioner.

179 Wash.2d 411

314 P.3d 1109

In the Matter of the Parentage of C.M.F.State of Washington, Plaintiff,

v. Jonathan Graham Fairfax, Alleged Father, Respondent,Travis James Riehl, Presumed Father, Defendant,andAmanda Clare Simpson, Mother, Petitioner.

No. 88029–8.

Supreme Court of Washington, En Banc.

Dec. 19, 2013.

Gary R. Stenzel, Gary R. Stenzel PS, Spokane, WA, for Petitioner.

Paul A. Dinenna Jr., Law Offices of Paul A. DiNenna, Jr., Spokane, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 Petitioner Amanda Simpson claims the court erred when it treated respondent Jonathan Fairfax's petition to establish a parenting plan as an initial “custody” proceeding under former RCW 26.26.375 (2002) instead of as a modification under RCW 26.09.260 and .270.¹ Because the superior court previously entered a parentage order that qualifies as a custody decree, we reverse the decision of the Court of Appeals and remand for further proceedings. The court must find that there is adequate cause and a change in circumstances as detailed in RCW 26.09.260 and .270 before it can change the custodial designation from Ms. Simpson to Mr. Fairfax.

Facts and Procedural History

¶ 2 The State brought a paternity action in 2008 to establish the parentage of C.M.F. Mr. Fairfax was subsequently adjudicated C.M.F.'s father. In the judgment and order determining parentage, the court designated Ms. Simpson the “custodian solely for purpose of other state and federal statutes” and allowed “[e]ither parent ... [to] move the Family Law Court ... to establish a residential schedule under this cause number.” Clerk's Papers (CP) at 46.

¶ 3 In December 2009, Mr. Fairfax petitioned the court to establish a parenting plan for C.M.F. Trial began on January 11, 2011. After Mr. Fairfax completed his case, Ms. Simpson moved the court to dismiss the petition under CR 12(b)(6) on the grounds that Mr. Fairfax had filed the wrong petition and failed to establish that there was adequate cause to hold a modification hearing. The court denied the motion, finding that the parentage order was not a custody decree and that Ms. Simpson's motion was untimely. Ms. Simpson presented her case, and the court created a final parenting plan that has C.M.F. residing with Mr. Fairfax for the majority of the time and designates Mr. Fairfax the “custodian of the child solely for purposes of all other state and federal statutes....” CP at 232. Ms. Simpson appealed and the Court of Appeals affirmed the trial court.

Issues

(1) Whether a parentage order that designates the mother “custodian solely for the purpose of other state and federal statutes” and the primary residential parent is a custody decree that requires the father, when filing a subsequent petition for a parenting plan that would make him the custodian and primary residential parent, to first show there is adequate cause to hold a modificationhearing and then, during the hearing, establish the statutory elements necessary for custodial modification.

(2) Whether the parentage court in this case waived the adequate cause and modification requirements by reserving a “residential schedule” in its parentage order.

(3) Whether the 2011 amendments to former RCW 26.26.130(7) (2001) apply in this case to waive the adequate cause and modification requirements.

(4) Whether Mr. Fairfax's improper use of a standard form should have resulted in the case's dismissal.

(5) Whether Ms. Simpson's waiting until after Mr. Fairfax had presented his case to bring her CR 12(b)(6) motion to dismiss waived the threshold requirement of adequate cause and the application of the statutory standards for modification.

Standard of Review

¶ 4 “We review questions of statutory interpretation de novo.” State v. Morales, 173 Wash.2d 560, 567 n. 3, 269 P.3d 263 (2012). We review de novo a ruling on a motion to dismiss a claim under CR 12(b)(6). Reid v. Pierce County, 136 Wash.2d 195, 200–01, 961 P.2d 333 (1998). Dismissal under CR 12(b)(6) is only appropriate if “it appears beyond a reasonable doubt that no facts exist that would justify recovery.” Cutler v. Phillips Petroleum Co., 124 Wash.2d 749, 755, 881 P.2d 216 (1994).

Analysis

A. The Parentage Order is a “Custody Decree” as That Term is Used in RCW 26.09.260 and .270

1. The Uniform Parentage Act of 2002 and the Parenting Act of 1987

¶ 5 In 2002, the legislature adopted the then-current version of the Uniform Parentage Act of 2002(UPA), chapter 26.26 RCW. The UPA governs all determinations of parentage in this state. RCW 26.26.021(1). The UPA provides detailed procedures for courts to follow, covering all facets of the parentage determination process, including the establishment of child support payments.

¶ 6 The Parenting Act of 1987, chapter 26.09 RCW, “fundamentally changed the legal procedures and framework addressing the parent-child relationship in Washington.” State v. Veliz, 176 Wash.2d 849, 855, 298 P.3d 75 (2013). The act mostly did away with the concepts of “visitation” and “custody” as they tended to “treat children as a prize awarded to one parent and denied the other.” Id. (citing Drafting Comm., 1987 Proposed Parenting Act: Replacing the Concept of Child Custody cmt. at 2 (sponsored by Wash. State Rep. Appelwick) (on file with Wash. State Archives)). Instead, the act promotes the child's relationship with both parents by requiring courts to establish parenting plans.

¶ 7 A parenting plan's overriding purpose is to do what is in the best interest of the child. RCW 26.09.002; seeRCW 26.09.184(1) (detailing the specific objectives of a parenting plan). The legislature specifically recognized that the child's best interests are normally served “when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.” RCW 26.09.002.

¶ 8 Accordingly, in the interest of stability, the legislature allows a court to modify a parenting plan or custody decree pursuant only to RCW 26.09.260 and .270. RCW 26.09.260(1) reads as follows:

[T]he 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.

(Emphasis added.) RCW 26.09.270, in turn, requires a party seeking to modify “a custody decree or parenting plan [to] submit togetherwith [the] motion, an affidavit setting forth facts supporting the requested order or modification....” A court is required to deny the motion unless it finds that “ adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.” Id. (emphasis added). These procedures protect stability by making it more difficult to challenge the status quo.²See In re Parentage of Jannot, 149 Wash.2d 123, 127–28, 65 P.3d 664 (2003) (noting that extended litigation can be harmful to children and that children have a strong interest in finality),

¶ 9 Notably, the UPA requires courts to make residential provisions for children in a parentage action “[o]n the same basis as provided in chapter 26.09 RCW.” Former RCW 26.26.130(7). Moreover, the UPA requires courts wishing to change parenting plans and residential provisions established in parentage orders to use the same procedures found in chapter 26.09 RCW. RCW 26.26.160(3).

¶ 10 In the present case, both parties concede that no parenting plan was established at the time of the parentage action. Thus, if the parentage order in this case is a custody decree, then the court did not conduct the parenting plan hearing in accordance with the proper statutory framework. Mr. Fairfax never submitted the affidavits required by RCW 26.09.270, and the court never made a finding of adequate cause. Similarly, during the hearing, the court did not make the necessary finding that there was a substantial change in Ms. Simpson or C.M.F.'s circumstances that would necessitate modification. SeeRCW 26.09.260.

2. Custody Decree Defined

¶ 11 Neither the UPA nor the Parenting Act of 1987 expressly defines “custody decree.” Listing “custody decree” and “parenting plan” separately, the legislature unmistakably recognized that these are two separate and distinct types of orders. SeeRCW 26.09.260(1); Veliz, 176 Wash.2d at 861, 298 P.3d 75 (“[T]he legislature has distinguished between parenting plans and [UPA] custody orders that include ... residential provisions.”).

¶ 12 When a statutory term is undefined, we apply the term's “ ‘plain and ordinary meaning unless a contrary legislative intent is indicated.’ ” State v. Jones, 172 Wash.2d 236, 242, 257 P.3d 616 (2011) (quoting Ravenscroft v. Wash. Water Power Co., 136 Wash.2d 911, 920–21, 969 P.2d 75 (1998)). Webster's defines “custody” as “control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it.” Webster's Third New International Dictionary 559 (2002). Webster's defines “decree” as “an order set forth by one having authority.” Id. at 588. Thus, a “custody decree” is an authoritative order placing the minor child in the care of someone who has the duty to comply with state law regarding care of a child.

¶ 13 According to this plain language definition, it appears that a parentage order is a custody decree. A parentage order is issued by a court with the authority and responsibility, pursuant to former RCW 26.26.130(7), to entrust the child with some person or persons who will care for the child as required by law. Using this same definition, however, it is also...