Shannon King, V. Bryce King ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
February 23, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Parenting Plan of No. 55494-1-II
SHANNON C. KING
Respondent,
and UNPUBLISHED OPINION
BRYCE KING,
Appellant.
MAXA, J. – Bryce King appeals the trial court’s order ruling that there was not adequate
cause to hold a hearing on his motion to modify an amended 2019 parenting plan entered
following the dissolution of his marriage with his former spouse, Shannon King. The 2019
parenting plan limited Bryce’s1 visitation with his children based on prior incidents in which
Bryce engaged in inappropriate and unlawful conduct with minors. Bryce contends that
psychological treatment he received after entry of the parenting plan constituted a substantial
change in circumstances establishing adequate cause to modify the parenting plan.
We hold that the trial court did not abuse its discretion in finding that Bryce did not make
a showing of adequate cause to hold a hearing on his motion to modify the parenting plan under
RCW 26.09.260(5) and (7) because he did not show a substantial change in circumstances. We
1
We refer to Bryce and Shannon King by their first names to avoid confusion. We intend no
disrespect.
No. 55494-1-II
also award Shannon her reasonable attorney fees under RCW 26.09.140 based on her financial
need. Accordingly, we affirm the trial court’s order finding no adequate cause to hold a hearing
on Bryce’s motion to modify the 2019 parenting plan, and we award Shannon her reasonable
attorney fees incurred in this appeal.
FACTS
Shannon and Bryce married in 2007 and have two children together. The children were
ages 10 and nine at the time of Bryce’s motion to modify. The parties divorced in 2015. Their
parenting plan initially provided for co-parenting of the children.
In 2018, Shannon received a message from a former neighbor, who stated that when she
was 15 years old Bryce repeatedly had watched her change clothes in the Kings’ home through a
hole in the bathroom wall and had engaged in grooming behavior, including showing her
pornography. After receiving this message, Shannon investigated further an incident in which
Bryce previously had been charged with child luring (for which Bryce claimed innocence).
Shannon learned that the luring victim actually had identified Bryce in a lineup and had seen the
car involved in the incident parked near where Bryce worked. She also learned that the victim
had alleged that Bryce was naked from the waist down and was masturbating when he tried to
get her into his car. Shannon also began to question Bryce’s explanation that although he had
pled guilty as a juvenile to first degree rape of a child, he actually was innocent.
Based on this new information, Shannon filed a petition to modify the 2015 parenting
plan.
While the modification proceeding was pending, Mark Whitehill, Ph.D. conducted a
psychosexual evaluation on Bryce. Risk assessment testing showed Bryce had a 51% risk of
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No. 55494-1-II
reoffending within the next 12 years. Dr. Whitehill recommended that Bryce enter treatment
with a therapist having expertise in personality disorders and sexual deviance.
In addition, while the modification proceeding was pending there was an incident where
Bryce removed court documents relating to his juvenile adjudication. He was convicted of
second degree theft for this incident. The trial court found that the theft of court records was
evidence of Bryce’s concealment and denial.
In January 2019, the trial court granted Shannon’s motion to modify the 2015 parenting
plan. The court found that Bryce’s “conduct with minor children” warranted the modification.
Clerk’s Papers (CP) at 13. The court also found that “the requested change is in the children’s
best interest” and “[t]he children’s current living situation while with their father is harmful to
their physical, mental, or emotional health.” CP at 13-14. To protect the children, the court
determined that limitations on Bryce’s time with them was necessary under RCW 26.09.191.2
The court made extensive additional findings regarding Bryce’s prior conduct with minor
children. The court stated,
Dr. Whitehill also concludes [Bryce] has a Histrionic Personality Disorder.
[Bryce’s] therapist . . . concurs with that assessment. There is a history of sexually
inappropriate behavior by [Bryce]. This is also consistent with the high-risk
behavior that Dr. Whitehill notes as being characteristic of someone with [Bryce’s]
personality; so is the theft. And, there is a history of minimizing and hiding
problematic behaviors. The personality disorder suggests [Bryce] minimizes his
imperfections and he is going to be resistant to seeing there is something wrong
with him.
CP at 16.
2
Under RCW 26.09.191(2)(a) a parent’s residential time shall be limited if it is found that the
parent has engaged in sexual abuse of a child. RCW 26.09.191 has been amended since the
events of this case transpired. Because these amendments do not impact the statutory language
relied on by this court, we refer to the current statute.
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No. 55494-1-II
The court noted that it “believes the Parenting Plan can be reviewed when [Bryce]
successfully completes the kinds of treatment that has been recognized [in] . . . Dr. Whitehill’s
report.” CP at 16. The court stated that it was not ordering this treatment, but it was ordering a
three-month risk management course with Bryce’s therapist.
The trial court modified the parties’ parenting plan by reducing Bryce’s time with the
children to every other weekend and two evenings per week with no overnight stays. The court
also required all parenting time to be supervised by Bryce’s current spouse.
In August 2020, Bryce filed a motion to modify the parenting plan.3 He alleged that he
had mitigated the change in circumstances that triggered the prior modification by completing
treatment. Bryce requested that the 2019 parenting plan be modified so that his time with the
children would not be supervised and the children could stay with him overnight.
In support of his motion, Bryce submitted statements from two therapists with whom he
had treated. One therapist stated in a short letter that he had met with Bryce five times and that
Bryce “has a good understanding of the characteristics of his personality disorder and has
gleaned the tools needed to cope with it.” Sealed Ex. 1. The other therapist provided a more
detailed letter about his 12 hours of treatment with Bryce. He concluded that there was little
indication that Bryce would be a threat to his children. However, the therapist stated: “It was
concerning that he denied culpability with any of the events in the past. Some of his positions
appeared to be counter to the record such as being identified by [the rape victim] as being the
perpetrator.” Sealed Ex. 2 at 2.
3
Bryce requested both a major and a minor modification. His appeal relates solely to the minor
modification.
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No. 55494-1-II
Bryce subsequently filed a motion with the trial court, requesting that the court clarify its
finding that the parenting plan could be reviewed after he completed treatment. Bryce asked the
court to rule that completion of treatment automatically constituted adequate cause to modify the
parenting plan. The court ruled that Bryce must comply with RCW 26.09.260 regarding his
petition to modify the parenting plan.
A court commissioner ruled that adequate cause did not exist to hold a hearing on
Bryce’s motion for modification because there had been no substantial change in circumstances.
Therefore, the commissioner dismissed Bryce’s motion.
Bryce filed a motion for revision with the trial court. He continued to argue that adequate
cause supported a full hearing on his motion for modification because he had sought treatment.
The trial court commended Bryce for seeking treatment, but concluded that completion of
treatment did not amount to a substantial change in circumstances warranting modification of the
2019 parenting plan. The court also stated that there was an absence of proof regarding the
children; there were no counseling records and no admissible evidence showing that they wanted
to spend more time with Bryce. The court concluded that Bryce did not establish adequate cause
and denied his motion for revision.
Bryce appeals the trial court’s order finding no adequate cause to hold a hearing on his
motion to modify the 2019 parenting plan.
ANALYSIS
A. NO ADEQUATE CAUSE FOR MODIFICATION
Bryce argues that the trial court abused its discretion by finding there was not adequate
cause to hold a hearing on his motion to modify the 2019 parenting plan. We disagree.
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No. 55494-1-II
1. Nature of Review
On a motion for revision, the trial court reviews the commissioner’s rulings de novo
based on the evidence presented to the commissioner. In re Marriage of Goodell, 130 Wn. App.
381, 388-89, 122 P.3d 929 (2005). Once the trial court rules on a motion for revision, we review
the trial court’s decision, not the commissioner’s decision. In re Marriage of Lyle, 199 Wn.
App. 629, 633, 398 P.3d 1225 (2017). Accordingly, we address only the trial court’s order.
2. Statutory Process for Modification
RCW 26.09.260 addresses the grounds for modifying a parenting plan. RCW
26.09.260(5) allows a trial court to adjust residential aspects of a parenting plan through a minor
modification in the residential schedule “upon a showing of a substantial change in
circumstances of either parent or of the child.” Bryce also relies on RCW 26.09.260(7), which
states that a parent subject to limitations under RCW 26.09.191(2) or (3) cannot seek expansion
of residential time “unless that parent demonstrates a substantial change in circumstances
specifically related to the basis for the limitation.”
Under both statutes, the movant must demonstrate a substantial change of
circumstances. RCW 26.09.260(5) and (7); In re Marriage of Cardwell, 16 Wn. App.2d
90, 102, 479 P.3d 1188 (2021). The court must base its determination of a substantial
change in circumstances on facts unknown to the court at the time of the prior decree or
plan or arising since entry of the decree or plan. In re Marriage of Tomsovic, 118 Wn.
App. 96, 105, 74 P.3d 692 (2003). Unknown facts include those that were not anticipated
by the court at the time of the prior plan. Id.Under RCW 26.09.270, a party seeking to modify a parenting plan must submit a motion
and an affidavit setting forth facts showing adequate cause for the requested modification. The
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No. 55494-1-II
trial court must deny the motion without a hearing unless the affidavit establishes adequate cause
to schedule a hearing. RCW 26.09.270; see In re Marriage of MacLaren, 8 Wn. App. 2d 751,
770-71, 440 P.3d 1055 (2019). If the court finds adequate cause, the court must schedule a
hearing on an order to show cause why the requested modification should not be granted. RCW
26.09.270.
To show adequate cause, the petitioner must present evidence that would support a
modification under RCW 26.09.260. MacLaren, 8 Wn. App. 2d at 774. The petitioner must do
more than assert unsupported allegations that would support modification if proved. Id. at 771.
“[T]he moving party must set forth facts and provide supporting evidence – not self-serving or
conclusory statements – to establish adequate cause.” Id. at 774. At a minimum, adequate cause
requires evidence sufficient to support a finding on each fact the moving party must prove to
modify the parenting plan. Id. at 772-73.
There is a “strong statutory presumption in favor of custodial continuity and against
modification.” MacLaren, 8 Wn. App. at 771. The adequate cause requirement places a very
heavy burden on the petitioner, with the goal of providing stability for the children. Id.
We review a trial court’s determination of adequate cause for a proposed parenting plan
modification for abuse of discretion. In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d
664 (2003). A trial court abuses its discretion where its decision is manifestly unreasonable or
based upon untenable grounds or reasons. In re Marriage of Black, 188 Wn.2d 114, 127, 392
P.3d 1041 (2017). More specifically, “the procedures and criteria set forth in RCW 26.09.260
limit the superior court’s range of discretion.” In re Marriage of Hoseth, 115 Wn. App. 563,
569, 63 P.3d 164 (2003). Therefore, the trial court abuses its discretion if it fails to base its
modification ruling on the statutory criteria. Id.7
No. 55494-1-II
3. Analysis
The basis for the trial court’s 2019 parenting plan modification was to protect the
children based on new information about Bryce’s first degree rape of a child juvenile
adjudication and the two allegations against him of sexual misconduct involving minors. The
court also was concerned that Bryce had a tendency to engage in high-risk conduct, concealment,
and denial.
The circumstances that existed when the 2019 parenting plan was entered had changed to
some extent by the time Bryce filed his petition to modify. Bryce had completed some
treatment. And after treatment one therapist saw little indication that Bryce was a danger to his
children. The question here is whether the trial court abused its discretion in determining that
those changed circumstances were not substantial under RCW 26.09.260(5) and (7) to require a
finding of adequate cause for a hearing on the motion for modification.
Two key facts supporting the 2019 parenting plan had not substantially changed. First,
Bryce continued to have a history of inappropriate and unlawful behavior with minor children.
Treatment did not change that fact. Second, Bryce continued to deny culpability for any prior
misconduct. Therefore, treatment did not affect one of the trial court’s primary concerns when
entering the 2019 parenting plan: Bryce’s “history of minimizing and hiding problematic
behaviors.” CP at 16.
In addition, when entering the 2019 parenting plan the trial court expressly found that
“[t]he children’s current living situation while with their father is harmful to their physical,
mental, or emotional health.” CP at 14. Bryce’s motion did not address whether this finding no
longer was valid.
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Our standard of review is abuse of discretion. Jannot, 149 Wn.2d at 128. And RCW
26.09.270 is designed to place a heavy burden on the petitioner. MacLaren, 8 Wn. App. at 771.
We cannot say that the trial court abused its discretion in ruling that Bryce had not shown a
substantial change of circumstances.
B. ATTORNEY FEES ON APPEAL
Shannon requests attorney fees on appeal under RCW 26.09.140. RCW 26.09.140 gives
us discretion to award reasonable attorney fees to either party on appeal “after considering the
financial resources of both parties.” We must balance the needs of the party requesting attorney
fees against the ability of the other party to pay. In re Marriage of Tupper, 15 Wn. App. 2d 796,
815, 478 P.3d 1132 (2020). We also consider the merits of the appeal. Id.RAP 18.1(c) states that in any action where an award of attorney fees is based on the
parties’ financial resources, each party must file an affidavit of financial need at least 10 days
before the date set for consideration. Shannon filed a declaration of need showing that her
monthly expenses exceed her net monthly income by almost $4,800. She stated that she did not
know Bryce’s current income but that Bryce reported his income in 2019 as $160,000. Bryce
has not filed a financial declaration or a response to Shannon’s declaration.
Shannon clearly demonstrates financial need. We exercise our discretion under RCW
26.09.140 and award Shannon her reasonable attorney fees incurred in this appeal.
CONCLUSION
We affirm the trial court’s order finding no adequate cause to hold a hearing on Bryce’s
motion to modify the 2019 parenting plan, and we award Shannon her reasonable attorney fees
incurred in this appeal.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
WORSWICK, P.J.
NEVIN, J.P.T.*
* Judge Jack Nevin is serving as a judge pro tempore of the court pursuant to RCW 2.06.150(1).
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