Roorda v. Roorda, 7618-3-I

• Decision Date: 14 April 1980
• Docket Number: No. 7618-3-I,7618-3-I
• Parties: In re the Marriage of Meindert ROORDA, Appellant, v. Ila Mary ROORDA, Respondent.
• Court: Washington Court of Appeals

Page 849

25 Wn.App. 849

611 P.2d 794

In re the Marriage of Meindert ROORDA, Appellant, v. Ila Mary ROORDA, Respondent.

No. 7618-3-I.

Court of Appeals of Washington, Division 1.

April 14, 1980.

Peter Jay Visser, Simonarson, Visser & Johnson, Lynden, for appellant.

Chester T. Lackey, John C. Belcher, Voris, Belcher, Swanson & Lackey, Bellingham, for respondent.

RINGOLD, Judge.

This action presents for our consideration the showing that must be made by the petitioner, Meindert Roorda, to meet the requirements of "adequate cause" under RCW 26.09.270:

A party seeking a temporary custody order or modification of a custody decree shall submit together with his motion, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceedings, who may file opposing affidavits. The court shall 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.

Roorda appeals the dismissal of his petition for modification of the child custody provisions of a dissolution decree. We agree with the trial court's determination that the petitioner failed to make the threshold showing of "adequate cause" and affirm.

In June, 1977, a decree dissolved the marriage between Ila Roorda (now Brann) and petitioner, and awarded custody of two children, Clint, 7, and Ryan, 3, and the third then unborn child to Mrs. Roorda. In February, 1979, Roorda filed his petition, supported by affidavit, seeking a change in the custody of the three children to him. Mrs. Brann filed a counter-affidavit and the petitioner responded with additional affidavits. The trial court dismissed Roorda's petition on the basis he had not demonstrated "adequate cause" for a hearing to modify the child custody decree.

No case authority has been cited to us, nor have we been able to find any that has definitively interpreted § 410 of the Uniform Marriage and Divorce Act, the foundation for RCW 26.09.270, and to guide us in resolving the primary issue presented here: "what standard should be applied in determining whether 'adequate cause' has been demonstrated to authorize a hearing of the motion to modify a child custody decree?"

Roorda argues that he is entitled to a hearing if his affidavits allege facts which together with reasonable inferences from those facts, establish a prima facie case for custody modification. He contends the procedure in RCW 26.09.270 is akin to that in a motion for summary judgment or a challenge to the sufficiency of the evidence and that if reasonable minds can differ or there is a conflict on an issue of material fact the threshold requirement of "adequate cause" is met. He asserts that the allegations in his affidavits and the reasonable inferences which flow therefrom, taken as true, establish a prima facie case for custody modification. Further, Roorda argues, without supporting authority or contention of constitutional infirmity, that a preliminary determination of adequate cause upon the merits without a hearing violates traditional notions of fair play and justice.

There is a strong presumption in the statutes and the case law in favor of custodial continuity and against modification. RCW 26.09.260 and .270; Anderson v. Anderson, 14 Wash.App. 366, 541 P.2d 996 (1975); Uniform Marriage and Divorce Act, 9A U.L.A. § 409, Comm'rs Note at 212 (Master ed. 1979). We observe a related policy expressed in the statute of preventing harassment of the custodial parent and providing stability for the child by imposing a heavy burden on a petitioner which must be satisfied before a hearing is convened. Another purpose of the statute is to discourage a noncustodial parent from filing a petition to modify custody. The oft-repeated touchstone of any custody decision is "the best interests of the child." Schuster v. Schuster, 90 Wash.2d 626, 585 P.2d 130 (1978). Litigation over custody is inconsistent with the child's welfare. "Adequate cause", therefore, requires something more than prima facie allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change. We do not determine the showing required, however, because the affidavits in this case do not establish a prima facie case.

To constitute a mere prima facie case it must be shown that: (1) the facts alleged in the affidavits are relevant to the grounds for modification; and (2) the evidence is not merely cumulative or impeaching.

In Anderson v. Anderson, supra at 368, 541 P.2d at 997, the...