In Re The Marriage Of Ronald P. Hunter v. Christie Cano ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 79376-4-I
RONALD P. HUNTER, )
)
Respondent, )
and
) UNPUBLISHED OPINION
CHRISTIE JULIE MARIE CANO, )
) FILED: August 26, 2019
Appellant. )
__________________________________________________________________________________)
VERELLEN, J. — Modifications to a parenting plan must be in the best
interests of the children. Here, the trial court did not adequately consider the
statutorily mandated factors or the children’s current needs. Rather, the court
relied on an invalid arbitrator’s decision and an underdeveloped factual record
to order the entry of a new parenting plan.
Therefore, we vacate the arbitrator’s decision and the court’s entry of the
parenting plan, and we remand for proceedings consistent with this opinion.
FACTS
Ron Hunter and Christie Cano dissolved their marriage in 2009. The
court adopted a parenting plan for their two children. Their son and daughter
are now 17 and 11, respectively. Their son suffers from a medical condition
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that causes frequent migraines and requires medication. The 2009 parenting
plan requires a 50-50 split of certain medical expenses for the children. In
March of 2016, Cano sought reimbursement of child-related expenses from
Hunter. In June of 2016, Hunter petitioned to modify the parenting plan. The
parties stipulated adequate cause warranted modification, and they entered
mediation.
Mediation resulted in three CR 2A agreements. The parties signed two
CR 2A agreements on August 31, 2016. One agreement temporarily limited
Hunter’s time with his children from overnights every other Saturday to eight
hours every other Saturday, required the immediate start of family counseling,
and allowed for the use of an arbitrator to choose a counselor. The other
agreement managed communications between the parents.
The CR 2A agreement central to this appeal was signed in February of
2017 and included a condition precedent to entering the new parenting plan
attached to the agreement:
Attached hereto are the provisions for [the] final parenting plan
that will be entered with the court after Loran lnman has
completed his therapy with the parties and children. This plan or
portions of this plan may be implemented by Loran Inman prior to
his completion of the therapy at his discretion. Both parents shall
cooperate and follow the recommendations and directions of
Loran Inman.[1]
Clerk’s Papers (CP) at 519.
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The agreement also required both parties and their children to
“immediately” enter counseling with Inman and gave In man the power to
“determine the structure of the therapy to re-unify the father’s relationship with
the children.”2 The agreement “contemplated that the therapy with Loran lnman
will last approximately [three] months.”3 The CR 2A continued the limitations on
Hunter’s residential time “until Loran Inman has directed or recommended
otherwise.”4 The agreement also contained an arbitration clause and a clause
authorizing court costs and attorney fees.
Hunter and his children soon began therapy with Inman. After more than
three months of therapy, Inman reported Hunter “has ‘not believed” that his son
has a medical condition and “has ‘withheld’ medication from him on one
occasion.”5 Inman also stated, “The children have made their point very clear
that they do not desire to have contact with their father, and do not enjoy the
contact that they do have.”6 Counseling continued. In October of 2017, Inman
concluded, “[M]ore intensive therapy is required to benefit this family and allow
for [family] reconciliation to occur.”7 But because Inman’s schedule did not let
2 Id.
~ Id.
~ CP at 520.
~ CP at 540.
6 Id.
~ CP at 543.
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him see Hunter and his children more frequently, he discontinued therapy and
referred them to a new therapist.
On December 9, Hunter lost his temper, cursed at and insulted his kids.8
On December 18, Cano’s attorney sent Hunter’s attorney a letter saying that
Cano would ‘not allow unsupervised visitation between Mr. Hunter and the
children” until ‘the parties and children resume counseling.”9 The next day,
Hunter filed a motion to enforce the portion of the CR 2A regarding visitation.
8 This incident occurred after Hunter took his children to the
Scottish Highland Games. Hunter’s son recorded a video of his father’s
outburst:
Son: You need counseling. You need like--you
have psychological problems.
Hunter: No, you do. You guys let your mom turn
fuckin’ against your own dad, this is
ridiculous.
Daughter: Yeah, because you’re freaking-
Hunter: I haven’t molested you. I haven’t done
anything to you.
Son: It’s mental, it’s mental stuff. You yell at us
all the time.
Hunter: Because I want to be with my own flesh and
blood? Fucking culture then, whatever
bullshit your mom tells you.
Son: Yeah. You want to be with your own flesh
and blood, but you yell at us.
CP at 569.
~ CP at 343.
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Commissioner Judson granted the motion and ordered that the parties follow
the residential placement provisions of the CR 2A. The court also scheduled a
review hearing for January 2018 to see whether Hunter resumed therapy.
Hunter briefly saw a new therapist in February and March of 2018 but stopped,
apparently because it was not covered by insurance.
In May, Hunter alleged that Cano denied his last three visits and moved
to enforce the residential time provisions of the CR 2A to find Cano in contempt.
Judge Garratt heard the motion. The court found Cano in contempt. Judge
Garratt’s order required compliance with the arbitration provision of the CR 2A
and that “[a]ny disputes with a final parenting plan will be submitted to [the
arbitrator].”1° It also required entry of “a final parenting plan from the Feb. 2,
2017, CR 2A within 60 days of this order unless superseded by further court
order. “11
On July 31, 2018, Hunter filed a motion to enforce the CR 2A and enter
the parenting plan. In response, Cano moved to enforce the therapy provisions
of the CR 2A. Judge Rietschel heard argument on the motions. Relying on
Judge Garratt’s order, the court ordered the parties to “submit to binding
arbitration” to determine whether Hunter satisfied the condition precedent in the
CR 2A.12 But the court also observed in its oral ruling “that the conditions
10CPat424.
~ CP at 423-24.
12 CP at 932.
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precedent in the CR 2A have not been met for that parenting plan to be
entered.”13 The court scheduled a review hearing to follow arbitration.
In October, the arbitrator sent the parties a letter defining the scope of
arbitration. Believing it to be detrimental, Cano moved to vacate the CR 2A, to
enter an order stating arbitration was not required, to enter a temporary
parenting plan, and set a trial schedule for Hunter’s motion to modify. The court
declined to consider Cano’s motion until after arbitration.
On November 14, 2018, the arbitrator issued his decision. He concluded
that Hunter substantially complied with the therapy requirements in the CR 2A
and that the parties failed to comply with Judge Garratt’s order requiring entry of
the parenting plan. He decided the “final parenting plan should immediately be
prepared and entered with the court no later than November 30, 2018.”~
Relying on that decision, Judge Rietschel denied Cano’s motion to
vacate the CR 2A agreement, denied her request for a temporary parenting
plan, and ordered that the parties sign the parenting plan in the CR 2A within 10
days. Hunter and Cano signed the 2018 parenting plan on November 30, and
the court entered that parenting plan.
Cano appeals.
13 CP at 956.
14CPat976.
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ANALYSIS
The core of Cano’s argument on appeal is that the court erred by
ordering arbitration and by relying on the arbitrator’s decision when entering the
2018 parenting plan. We review arbitrability decisions for a CR 2A agreement
de novo.~’5 Whether a dispute is arbitrable is determined by the parties’
agreement.16 If a court “‘can fairly say that the parties’ arbitration agreement
covers the dispute, the inquiry ends because Washington strongly favors
arbitration.”17 But any decision by an arbitrator beyond his authorized scope is
subject to vacation.18
The February 2017 CR 2A allows for arbitration:
The parenting plan attached shall be re-drafted into the new family
law forms. If there is any dispute on the final parenting plan to be
entered that issue will be submitted to Timothy G. Edwards as
binding arbitrator. The sole purpose of this provision is to have
the actually [sic] wording of the final parenting plan approved and
entered with the courtj19]
By its terms, the only disputes subject to arbitration are those “on the final
parenting plan” where the parties contest the plan’s “actual[] wording.”2° This
In re MarriacieofPascale, 173 Wn. App. 836, 841, 295 P.3d
15805 (2013).
16kLat842.
17 ki. at 842 (quoting Davis v. Gen. Dynamics Land Sys., 152 Wn.
App. 715, 718, 217 P.3d 1191 (2009)).
18 Price v. Farmers Ins. Co. of Wash., 133 Wn.2d 490, 500, 946
P.2d 388 (1997).
19 CP at 576.
20 Id.7
No. 79376-4-1/8
narrow arbitration clause does not extend to any dispute over the terms of the
CR 2A agreement apart from the terms of the parenting plan attached to the
CR 2A agreement.
Judge Garratt ordered entry of a final parenting plan and that “[amy
dispute with a final parenting plan will be submitted to Timothy Edwards for
binding arbitration.”21 But this seemingly broad authorization for arbitration is
limited by the scope of the parties’ agreement.22
A few months later, Judge Rietschel considered the parties’ cross
motions to enforce the CR 2A agreement and concluded the condition
precedent was not met. The court did not resolve the dilemma of how to
proceed, though, because
I’m as bound by [Judge Garratt’s] order as everyone else. [T}he
parties have to go back to binding arbitration because there is a
dispute about the parenting plan. What do the parties do now that
the conditions precedent to the agreed parenting plan have not
been met? I think that’s clearly an issue for the arbitrator. [23]
Whether Hunter satisfied the condition precedent and what to do upon
failure to satisfy the condition precedent both stem from the CR 2A agreement,
not the language of the parenting plan. Neither Judge Garratt’s order nor the
CR 2A agreement authorized arbitration for disputes arising out of the
21 CP at 424.
22S~ Price, 133 Wn.2d at 500 (“[T]he arbiter’s authority is limited
by that which is submitted pursuant to the agreement to arbitrate.”); see
also Pascale, 173 Wn. App. at 842 (“The arbitrability of a dispute is
determined by. the arbitration agreement.”).
. .
23 CP at 957.
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No. 79376-4-119
agreement itself. Because the parties’ did not agree to arbitrate disputes
arising solely out of the CR 2A agreement, arbitration was not appropriate.
Hunter contends the parties’ agreed to binding arbitration by filing a
notice of settlement. The notice of settlement is a generic document used to
update the court and assist with the court’s management of its caseload and
calendar. It recites, “[The] parties have agreed to resolve all remaining
outstanding issues in this matter through binding arbitration.”24 Hunter cites no
authority for the proposition that an administrative notice from the parties to the
court, at least in this setting, overrides the bargained terms within the CR 2A
agreement itself.
The parties dispute whether the arbitrator exceeded the scope of
arbitration. Because arbitration itself was inappropriate, any decision by the
arbitrator was beyond the proper scope of the arbitration. And even if
arbitration were authorized to resolve the condition precedent, the arbitrator
exceeded his authority by recommending immediate entry of the final parenting
plan by November 30, 2018, and by deciding that Hunter’s residential time
“should be as provided in that final parenting plan” beginning in December
2018.25 Both decisions involve the operation of the CR 2A agreement rather
than the wording of the parenting plan itself. Thus, the arbitrator exceeded the
scope of arbitration and, accordingly, we vacate the arbitrator’s decision.
24 CP at 81.
25 CP at 976.
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Cano argues the court erred when it entered the 2018 parenting plan
because it relied upon the arbitrator’s improper decision. We review entry of a
parenting plan for abuse of discretion.26 A court abuses its discretion where its
decision rests on untenable factual grounds or was made for untenable reasons
in reliance upon an incorrect legal standard.27
A trial court must independently review all proposed modifications to a
parenting plan.28 The children’s best interests determine the propriety of a
modification to a parenting plan’s residential schedule.29 RCW26.09.187(3)(a)
lists factors a court must consider before setting the residential provisions of a
permanent parenting plan. For a residential schedule, the children’s best
interests “must be based on the statutory factors and the circumstances of the
parties as they exist at the time of trial.”30
The court’s oral ruling simultaneously considered Cano’s motion to
vacate and Hunter’s motion to enforce the CR 2A agreement:
[I] sent you back to arbitration because it was clear that
there was a problem in that [Hunter] had agreed to a counseling
condition that amounted . to a condition precedent.
. . .
26 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362(1997).
27 k~. at 46-47.
28 In re Marriage of Coy, 160 Wn. App. 797, 804, 248 P.3d 1101(2011).
29 j~ (citing RCW 26.09.260(1)).
30 Littlefield, 133 Wn.2d at 56.
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No. 79376-4-Ill 1
The part of the [arbitrator’s] decision that [I am] most
interested in and [I] did review it in full, was that the arbitrator
found that the first expert referred the parties to the second
counselor Inman. It was the arbitrator’s decision that [Inman]
went beyond [the CR 2A agreement], that the compliance asked
for exceeded the expectation. The arbitrator found that there was
substantial compliance in terms of the counseling by the
petitioner. That is the precise issue that [I] referred to arbitration.
Given that decision, given the prior CR 2As, given the decision of
Judge Garratt, there is no legal basis that I see to vacate any of
the CR 2A.
The review that this court does on parenting plans is
whether they are in the best interest of the children. I take
seriously [Cano’s] position that [she] doesn’t believe that the
parenting plan entered—years ago by now—under the CR 2A is in
the best interest of the children. But it is hard for this court to
make that judgment based on what [it] has in front of it at this
time. What I have is the decision of the arbitrator, the CR 2As,
counseling recommendations, and clearly a long period of time
where [Hunter] has had very little access to his children . . I
. .
don’t have enough information before me to make a judgment that
the parenting plan is not in the best interest of the children. And
therefore, I am going to. deny the motion to vacate.~31~
. .
We recognize this was an unusual situation, but the court erred by
denying the motion to vacate and entering the parenting plan based on the
record before it. The court relied heavily on the arbitrator’s unauthorized
decision when denying the motion to vacate the CR 2A agreement. Before
entering a parenting plan, a court must consider seven statutory factors.32 The
arbitrator did not consider those factors before ordering entry of the parenting
plan.33 The court relied on the arbitrator’s deficient decision, in addition to other
31 RP (Nov. 19, 2018) at 48-50.
32 RCW 26.09.187(3)(a).
~ CP at 965-76.
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No. 79376-4-1112
evidence, when considering the best interests of the children. And the court did
not expressly weigh all seven factors itself when considering the children’s best
interests. The court appears to assume that the proposed parenting plan is in
the children’s best interests and instead finds insufficient information to unsettle
that assumption.
For these reasons, we vacate the November 19, 2018 order on Cano’s
motion to vacate the CR 2A agreement, entry of the parenting plan, and all
other orders appealed. We remand for further proceedings consistent with this
opinion.
Essentially, this restores the 2009 parenting plan and resets this case to
when Hunter’s motion to modify the 2009 plan was pending. The parties have
stipulated that adequate cause existed for the modification. The parties are
governed by the February 2017 CR 2A agreement. They disagree whether
Hunter’s attendance of more than three months of therapy satisfied the
condition precedent in the CR 2A agreement and whether his refusal to attend
additional therapy repudiates the CR 2A agreement.
On remand, the ultimate goal is for the trial court itself to enter a
permanent parenting plan that serves the best interests of the children at the
time of entry.34 Although the trial court has broad discretion on remand, it
appears the issues to be addressed fall into four categories.
~ Of course, if necessary, the court has the authority on remand
to require the parties to provide adequate and current information.
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First, has Hunter repudiated the CR 2A agreement? If the agreement
has been repudiated, then the parties will be governed by the 2009 parenting
plan subject to any motions to modify the terms of that plan.
Second, if the CR 2A agreement has not been repudiated, then has the
condition precedent of the CR 2A agreement been satisfied? If the condition
has been satisfied, then the court should proceed to address entry of the
parenting plan attached to the CR 2A agreement, including whether that plan is
in the current best interests of the children. If the condition precedent has not
been satisfied, then the court should resolve whether additional delay to pursue
further treatment efforts is warranted or should be abandoned. This decision
must be based upon the current best interests of the children.
Third, at any point when considering the viability of any aspect of the
CR 2A agreement, if the court concludes protecting the current best interests of
the children is inconsistent with and frustrates the purpose of the CR 2A
agreement, then the parties’ obligations under that agreement should be
discharged and the CR 2A set aside.35
~ See Felt v. McCarthy, 78 Wn. App. 362, 367, 898 P.2d 315(1995), afrd, 130 Wn.2d 203, 922 P.2d 90 (1996) (“The more
fundamental inquiry is whether ‘the assumed possibility of a desired
object to be attained by either party forms the basis on which both
parties enter into it.” (emphasis added) (quoting Weyerhaeuser Real
Estate Co. v. Stoneway Concrete, Inc., 96 Wn.2d 558, 562, 637 P.2d
647 (1981))). “The object must be so completely the basis of the
contract that, as both parties understand, without it the transaction would
make little sense.” (emphasis added) (quoting Wash. State Hor
Producers, Inc. Liquidation Tr. v. Goschie Farms, Inc., 112 Wn.2d 694,
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No. 79376-4-1/14
Fourth, the parties have jointly advised us of recent developments that
resulted in Cano’s motion to modify the 2018 parenting plan and the trial court’s
finding of adequate cause to support a trial on that motion to modify. A trial is
set for 2020. Because we have vacated the 2018 parenting plan, it is up to
Cano to decide how to present her ongoing concerns related to recent events,
including, but not limited to, an amended or new motion by Cano for
modification of the 2009 parenting plan or any new interim parenting plan. Of
course, the trial court on remand has broad discretion to determine how to
structure those proceedings in a manner that promotes and serves full
consideration of the current best interests of the children.
The remaining issues involve attorney fees. Cano assigns error to the
court’s award of attorney fees to Hunter. Based on the attorney fee provision in
the CR 2A agreement, the court awarded Hunter $6,400 in attorney fees for
litigating Cano’s motion to vacate and for the arbitration. The CR 2A agreement
entitles a party to fees “in the event either party is forced to move this Court for
an Order enforcing the agreement as a result of the other part[y’s] conduct.”36
To be entitled to fees, the movant must show the other party’s conduct
necessarily caused them to move to enforce the CR 2A agreement. Because
we have vacated the orders appealed by Cano, we conclude the court’s award
700, 773 P.2d 70 (1989))); see also Felt v. McCarthy, 130 Wn.2d 203,
207-08, 922 P.2d 90 (1996) (quoting RESTATEMENT (SECOND) OF
CONTRACTS § 265 (1979)).
36 CF at 578.
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No. 79376-4-1/15
of fees should be set aside as premature. Once there is a final resolution of the
pending matters on remand, the trial court will have the discretion to consider
an appropriate award of attorney fees. Because the ultimate resolution of this
matter is ongoing, we also decline to award attorney fees on appeal.
Consistent with RAP 18.1(i), the trial court may include reasonable fees on
appeal as part of any award of fees after remand.
Therefore, we reverse and remand for proceedings consistent with this
opinion.
WE CONCUR:
15