In the Matter of the Marriage of: Heidi R. Engstrom and Joseph L. Engstrom ( 2018 )

FILED
AUGUST 21, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of ) No. 35397-4-III
)
HEIDI REGINA ENGSTROM, )
n/k/a HEIDI REGINA BENDICK, )
)
Appellant, )
) UNPUBLISHED OPINION
and )
)
JOSEPH LOGAN ENGSTROM, )
)
Respondent. )
PENNELL, J. — Heidi Bendick appeals a trial court order finding inadequate cause
to modify the parties’ parenting plan. We affirm.
FACTS
Joseph Engstrom and Heidi Bendick dissolved their marriage in 2008. At the time
of the events relevant to this appeal, Mr. Engstrom was living in Spokane County and Ms.
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Bendick was living in Florida with the parties’ two children. Pursuant to a modified
parenting plan stipulated to by the parties in 2015, Ms. Bendick was made the primary
custodial parent. Mr. Engstrom was afforded ample visitation rights and the parties
designed their parenting plan to accommodate the long distance across the country
between their homes. While the parties dispute the reasons why, both agree the
provisions of the current parenting plan have not been followed to the letter.
In September 2016, Mr. Engstrom was charged with vehicular assault. He was
allegedly involved in a head-on collision that seriously injured the driver of the other
vehicle. At the time of his arrest, Mr. Engstrom told the police he had just taken some
pills, later confirmed to be Zolpidem (Ambien), that affected his ability to drive. In a
declaration, Mr. Engstrom stated Ambien is known to cause “‘Ambien black-outs,’”
which can result in “sleep-driving.” Clerks Papers (CP) at 88. Mr. Engstrom further
explained he had been prescribed Ambien by a doctor but stopped taking it after this
incident. He was not required to submit to random drug testing as part of his pretrial
release conditions.
According to Ms. Bendick, Mr. Engstrom was evasive with her about the incident
and referred to it as a minor car accident. She did not learn the full details until she
independently obtained a copy of the police report. Ms. Bendick then filed a petition to
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modify the parenting plan. She alleged the children were in a situation that was
dangerous to their physical, mental, or emotional health. Ms. Bendick further alleged Mr.
Engstrom was not compliant with the current parenting plan and that his injuries from the
collision were negatively affecting his judgment. She asked the court to restrict Mr.
Engstrom’s residential time with the children until he proved he was capable of being a fit
parent. Ms. Bendick also claimed Mr. Engstrom’s speech had been slurred and lethargic,
his memory often lapsed, and he was abusing prescription drugs. Mr. Engstrom denied
these allegations. He pointed out that he was fully compliant with pretrial release
conditions, still employed, and no longer taking Ambien.
A superior court commissioner found adequate cause to proceed to a full hearing
on Ms. Bendick’s petition. This finding was “based solely on the pending criminal
charge.” CP at 108. The commissioner did not find adequate cause as to the other
allegations in Ms. Bendick’s petition. Mr. Engstrom sought revision by a superior court
judge. The judge revised the commissioner’s ruling, finding no adequate cause to
proceed to a full hearing on Ms. Bendick’s petition because there was no nexus between
the alleged use of Ambien and the pending criminal charge and harm to the children. Ms.
Bendick appeals the order revising the commissioner’s ruling.
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ANALYSIS
Ms. Bendick requested a full hearing on her petition pursuant to RCW 26.09.270.
Under that statute, the court shall deny a motion for a full hearing “unless it finds that
adequate cause for hearing the motion is established by the affidavits” submitted by the
moving party. For a hearing to be justified, the specific factual allegations in the
affidavits must establish a prima facie case to modify the parenting plan under
RCW 26.09.260. In re Marriage of Tomsovic, 118 Wash. App. 96, 104, 74 P.3d 692
(2003); In re Parentage of Jannot, 110 Wash. App. 16, 24-25, 37 P.3d 1265 (2002), aff’d,
149 Wash. 2d 123, 65 P.3d 664 (2003). A trial court’s determination on adequate cause for
a full hearing is reviewed for abuse of discretion. 1 Tomsovic, 118 Wash. App. at 104.
In her petition, Ms. Bendick argued that Mr. Engstrom’s living environment was
detrimental to the physical, emotional, or mental health of the parties’ children. This
argument is based on RCW 26.09.260(2)(c). 2 That subsection states a court shall retain a
residential schedule unless “[t]he child’s present environment is detrimental to the child’s
1
We review the superior court’s decision, not the commissioner’s. State v.
Hoffman, 115 Wash. App. 91, 101, 60 P.3d 1261, reversed on other grounds by 150 Wash. 2d
536, 78 P.3d 1289 (2003).
2
Although Ms. Bendick is the primary residential parent, her arguments on appeal
are structured under RCW 26.09.260(2) rather than RCW 26.09.260(4). We follow this
structure without addressing the potential applicability of subsection (4).
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physical, mental, or emotional health and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the child.” Thus, the prima
facie case Ms. Bendick had to establish in the superior court was: “(1) a substantial
change occurred in circumstances as they were previously known to the court, (2) the
present arrangement is detrimental to the child’s health, (3) modification is in the child’s
best interest, and (4) the change will be more helpful than harmful to the child.” In re
Marriage of Zigler, 154 Wash. App. 803, 809, 226 P.3d 202 (2010) (citing RCW
26.09.260(1), (2)(c)).
The superior court articulated tenable reasons for finding Ms. Bendick had not
established a prima facie case of a detrimental change in circumstances. As recognized
by the superior court, Mr. Engstrom’s criminal charge was an understandable cause for
concern. However, the nature of the charge was not, by itself, sufficient to require the
court to find adequate cause to alter the parenting plan. See Jannot, 110 Wash. App. at 25
(“Certainly, documented supported claims of physical, sexual, or emotional abuse warrant
a full hearing. But short of that, these are matters that should be left to the discretion of
the trial judge.”). The superior court recognized that the parties’ children were not in Mr.
Engstrom’s care at the time of his arrest. Ms. Bendick did not proffer any evidence that
Mr. Engstrom was engaged in ongoing criminal misconduct. In addition, Mr. Engstrom
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was no longer prescribed Ambien and had stopped taking the drug. These circumstances
all supported the superior court’s discretionary decision not to alter the existing parenting
plan.
The superior court was not faced with the kind of evidence that would ordinarily
warrant modification of a parenting plan due to potential risk of harm. As pointed out by
Ms. Bendick, our case law has recognized that potential risk of harm can be sufficient
to establish a change of circumstances for purposes of modifying a parenting plan.
However, the line of cases referenced by Ms. Bendick all involved children who had
experienced actual changes to their living environments. Marriage of Zigler, 154 Wn.
App. at 812-14 (actual exposure to domestic violence in the home created sufficient risk
of harm); In re Marriage of Frasier, 33 Wash. App. 445, 655 P.2d 718 (1982) (unstable
living conditions and exposure to prison environment created sufficient risk of harm);
McDaniel v. McDaniel, 14 Wash. App. 194, 197-98, 539 P.2d 699 (1975) (irregular diet,
school attendance, and marijuana exposure created sufficient risk of harm). Here,
because the parties’ children had not been in Mr. Engstrom’s care subsequent to his
arrest, Ms. Bendick was unable to produce any evidence of an actual change in living
situation that could result in some sort of harm. Given this circumstance, the superior
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court had ample ~eason to reject Ms. Bendick's concerns about potential harm as too
speculative to warrant modifying the parenting plan.
CONCLUSION
The superior court's order on revision is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
WE CONCUR:
Lawrence-Berrey, C.J. Fear~~/~
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