NEw Unpublished decision has help for agreed parenting plans

[4honor]

IF you can get your ex to AGREE to you having custody in the future, you have help in maintaining that agreement in the future.

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=231224MAJ

For example, you are both fit parents.
You agree with the ex that she can have the kids until 2008.
Then you get them for the next 3 school years.
BM's lawyer thinks she can modify between now and then.
You both remain fit parents throuh 2008 and BM tries to modify prior to the change over.

The Statute [RCW 26.09.260(1)] says:
A trial court hearing a modification action, on the other hand,
presumes the best interests of the child require the primary placement
remain intact.

 In this case, the BM states that this means she maintains placement and the BF has to meet the threshold. However, the court states that the AGREED PARENTING PLAN makes the BF the primary placement in this modification action, and thus SHE must PROVE that changing the placement is not in the kids' best interest.


WORK TOWARD AN AGREED PARENTING PLAN.

[4honor]

DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       23122-4-III
Title of Case:       In re the Marriage of Nicholas J. Manring
                     and Donna S. Manring
File Date:           06/23/2005


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Whitman County
Docket No:      95-3-00082-9
Judgment or order under review
Date filed:     05/21/2004
Judge signing:  Hon. Richard W Miller


                                     JUDGES
                                     ------
Authored by Stephen M Brown
Concurring: Frank L. Kurtz
            Kenneth H. Kato


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Mark S. Moorer
            Attorney at Law
            113 N Jackson St
            PO Box 9004
            Moscow, ID  83843-1504

Counsel for Respondent(s)
            Michael James Pettit
            Attorney at Law
            445 S Grand Ave
            Pullman, WA  99163-2751

            Dorothy Louise Wiley
            Attorney at Law
            445 S Grand Ave
            Pullman, WA  99163-2751

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of Manring:                   )
                                                 ) No. 23122-4-III
NICHOLAS J. MANRING,                             )
                                                 ) Division Three
               Respondent,                       ) Panel Ten
                                                 ) and )
UNPUBLISHED OPINION
                                                 ) DONNA S. MANRING, )
                                                 )
               Appellant.                        )

     BROWN, J.--Under the parties' parenting plan, the twin children of
Donna Manring, now Donna Gwinn, and Nicholas Manring were to live with
their father during the sixth, seventh, and eighth grade beginning at age
10.  Mr. Manring is a diplomat in Costa Rica.  Ms. Gwinn sought
clarification to test if the age or the school year was determinative.
Additionally, Ms. Gwinn sought modification to delete all three school
years so she could retain full residential placement.  The trial court
clarified that the school years triggered the placement and denied
modification of the sixth grade plan, but took under advisement
modification of the seventh and eighth grade plan, permitting review after
the sixth grade.  Ms. Gwinn contends the court abused its discretion.  We
affirm.

FACTS
This appeal concerns Austin and Dimitri, the twin sons of Ms. Gwinn and Mr.
Manring.  Superior Court Judge Richard Miller dissolved the parties'
marriage in February 1997 and has closely managed this case in continuing
litigation ever since.
The twins were three years old when the agreed parenting plan was adopted
by the court.  The twins would reside with Ms. Gwinn through the fifth
grade, but as they reached the age of 10, arrangements would 'be made for
the twins to reside with their father during the sixth, seventh, and eighth
grades.'  Clerk's Papers (CP) at 12.  Since Mr. Manring is a United States
diplomat, employed outside the United States, the twins' placement with him
was conditioned on his residing in 'a reasonably acceptable country,
according to State Department standards.'  CP at 12.
     In April 2003, Ms. Gwinn requested clarification of whether their time
with their father was to start when the boys were 10 years old or when they
started the sixth grade because the boys started school late.
Additionally, Ms. Gwinn petitioned to modify the parenting plan to prevent
the boys from living with their father at all during the previously agreed
school years.  She alleged substantial change in circumstance because the
boys had established residency in Garfield, Washington with their mother
and alternating between her and their father's home was not in their best
interests.
     After finding adequate cause to proceed, Judge Miller joined the
matters.  The judge clarified that the boys' time with their father was
related to school years, not age.  Regarding modification, the court
stated, 'At this point uhm, as I've indicated, I have not modified the
parenting plan at least as it relates to the parties' decisions to allow
three years with Mr. Manring.' RP (May 13, 2004) at 50.  The court filed a
'Memorandum Opinion Re Parenting Plan.'  CP at 470.  The court ordered the
twins to spend their sixth grade year with their father, but noted that
during the summer of 2006, the court would review the children's status 'to
determine whether or not the current Parenting Plan should be modified
further.'  CP at 474.  Ms. Gwinn appealed.
ANALYSIS
The issue is whether the trial judge erred by abusing his discretion in
denying Ms. Gwinn's modification of the parties' agreed parenting plan for
the boys' sixth grade school year while taking under advisement the
decision to decide the issue of the remaining two school years.
Initially, we note the parties' disagree whether this is a matter
appropriate for direct or discretionary review.  First, the clarification
order is not challenged on review by either party.  Therefore, we review
solely the modification matter.  Second, the judge effectively denied Ms.
Gwinn's modification motion, at least as to the first of the three years
involved, by allowing that to proceed.  Therefore, our review is direct.
Third, the judge exercised discretion to grant leave for further review
after the sixth school year without an additional adequate cause showing, a
matter favoring Ms. Gwinn.  Mr. Manring has not sought review of that
decision, but some discussion of that exercise of discretion is
nevertheless merited because Ms. Gwinn contends the judge should have
decided it all in her favor.
     The next preliminary matter is Mr. Manring's request to strike or not
consider the GAL report attached to Ms. Gwinn's opening brief as not
properly before this court for review since it was not before the trial
court.  The GAL report was filed after Judge Miller's memorandum opinion
and is clearly outside the official record.  Under RAP 10.3(a)(7), '(a)n
appendix may not include materials not contained in the record on review
without permission from the appellate court.'  The motion is granted, and
we do not consider the post-hearing GAL report.
     We review trial court decisions dealing with the welfare of children
for abuse of discretion.  In re Marriage of McDole, 122 Wn.2d 604, 610, 859
P.2d 1239 (1993).  Abuse of discretion occurs 'when the trial court's
decision is manifestly unreasonable or based upon untenable grounds or
reasons.'  State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).  'A
court's decision is manifestly unreasonable if it is outside the range of
acceptable choices, given the facts and the applicable legal standard; it
is based on untenable grounds if the factual findings are unsupported by
the record; it is based on untenable reasons if it is based on an incorrect
standard or the facts do not meet the requirements of the correct
standard.'  In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362
(1997).
Decisions regarding residential placement must be made in the best
interests of the children.  In re Parentage of J.H., 112 Wn. App. 486, 492-
93, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003).
Additionally, the following factors must be considered:
(i) The relative strength, nature, and stability of the child's
relationship with each parent, including whether a parent has taken greater
responsibility for performing parenting functions relating to the daily
needs of the child;
(ii) The agreements of the parties, provided they were entered into
knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting
functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant
adults, as well as the child's involvement with his or her physical
surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is
sufficiently mature to express reasoned and independent preferences as to
his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations
consistent with those schedules.

Factor (i) shall be given the greatest weight.

RCW 26.09.187(3)(a)(i)-(vii).
     A trial court hearing a modification action, on the other hand,
presumes the best interests of the child require the primary placement
remain intact.  RCW 26.09.260(1).  Ms. Gwinn argues this presumption is in
her favor.  However, the parties' agreed parenting plan gives Mr. Manring
primary placement during Austin and Dimitri's sixth, seventh, and eighth
grade years.  Ms. Gwinn is the party who has the burden to '(overcome) that
presumption by showing continued placement with the other parent is not in
the (children's) best interest.'  In re Marriage of Combs, 105 Wn. App.
168, 174, 19 P.3d 469 (2001) (quoting In re Marriage of Pape, 139 Wn.2d
694, 715, 989 P.2d 1120 (1999)).  The trial court decided she failed to
meet her burden after careful consideration of all the evidence.  We defer
to the trial court's fact finding and weight giving functions in this area.
Here, Mr. Manring provided ample evidence that he can provide a safe,
loving environment for the twins.  For instance, he provided evidence about
the availability of medical care, schools, and the overall safety of living
abroad.  While Ms. Gwinn also provided evidence that the boys are happy
residing with her in Garfield, deference is given to the court's ruling.
Marriage of McDole, 122 Wn.2d at 610.  Judge Miller has been involved with
this family since the initial parenting plan was entered.  He has viewed
the parties' demeanor and conferred with the GAL.  Allowing the boys to
reside with their father, while agreeing to review their progress after one
year, shows the court considered, and is willing to reconsider in the
future, the children's best interests.
     In sum, Judge Miller did not abuse his discretion in denying Ms.
Gwinn's motion to modify the parenting plan to delete Mr. Manring's
residential time with the twins during the three school years at issue.
Further, we decide the judge did not abuse his discretion in granting leave
to review the application effects of the agreed parenting plan after the
first of the three school years.
     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.

                                        Brown, J.

WE CONCUR:

Kato, C.J.

Kurtz, J.