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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

In re                                                            No.  41140-7-II

RYLEE ROGERS,

                             Child,

DIANA LYNN ROGERS,

                             Petitioner,

       and

CHRISTOPHER KAYE ROGERS,                                   UNPUBLISHED OPINION

                             Respondent.

       Quinn-Brintnall, J.   --     Diana  Rogers (now known as Diana Driskill and hereinafter 

referred to as Driskill), formerly married to Christopher Rogers, appeals the trial court's order 

preventing her from relocating with their daughter to Kentucky.  Finding no abuse of discretion, 

we affirm.  

                                             Facts

       Driskill and Rogers divorced in 2005 after six years of marriage.  Driskill was granted 

primary residential custody of Rylee, their five-year-old daughter.  In 2008, Driskill married 

Rickie Driskill, her fifth husband, after he moved to Washington from his home in Kentucky.   

No. 41140-7-II

       On May 25, 2009, Driskill gave notice of her intent to relocate with nine-year-old Rylee to 

Kentucky and her husband's former home.  Driskill asserted that her husband was having 

difficulty finding employment in Washington, that his aging parents in Kentucky needed their 

assistance, and that she had employment opportunities in Kentucky.  At the time, Driskill was 

employed as a warranty manager for a car dealer and had been so employed since 2003.  Driskill 

subsequently quit her job and leased her home in anticipation of the move to Kentucky.  

       Rogers objected to the proposed relocation, arguing that Driskill was pursuing a 

"geographical fix" for financial problems, that Rylee would suffer emotional trauma from a move 

to rural Kentucky, and the move's long-term prospects were poor.  Clerk's Papers (CP) at 15.  A 

commissioner entered a temporary order restraining Rylee's relocation based on the likelihood 

that, on final hearing, the court would not approve it.  The trial court denied Driskill's motion for 

revision and the matter came to trial.  

       After Rogers, Driskill, and three witnesses testified, the trial court weighed the statutory 

relocation factors on the record.  One of the eleven factors was inapplicable, six were neutral, and 

four weighed against relocation.  The trial court denied the requested relocation and entered 

written findings of fact and conclusions of law supporting that denial.  After the court denied 

Driskill's motion for reconsideration, she filed this appeal.  

                                           Discussion

Application of Relocation Factors

       Driskill argues first that the trial court abused its discretion by failing to apply the 

presumption in favor of relocation to the statutory factors it characterized as neutral.

       A trial court has discretion to grant or deny a relocation after considering the RCW 

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No. 41140-7-II

26.09.520 relocation factors and the interests of the child and her parents.  In re Marriage of 

Horner, 151 Wn.2d 884, 894, 93 P.3d 124 (2004); In re Marriage of Fahey, 164 Wn. App. 42, 

56, 262 P.3d 128 (2011), review denied, 173 Wn.2d 1019 (2012).  RCW 26.09.520 creates a 

rebuttable presumption in favor of allowing relocation.  In re Marriage of Pennamen, 135 Wn. 

App. 790, 801, 146 P.3d 466 (2006).  To rebut this presumption, the objecting party must 

demonstrate "that the detrimental effect of the relocation outweighs the benefit of the change to 

the child and the relocating person" based on the 11 factors specified.  RCW 26.09.520.  These 

factors, which are not weighted or based on any particular order, consider  

              (1)  [t]he relative strength, nature, quality, extent of involvement, and 
       stability of the child's relationship with each parent, siblings, and other significant 
       persons in the child's life;
              (2)  Prior agreements of the parties;
              (3)  Whether disrupting the contact between the child and the person with 
       whom the child resides a majority of the time would be more detrimental to the 
       child than disrupting contact between the child and the person objecting to the 
       relocation;
              (4)  Whether either parent or a person entitled to residential time with the 
       child is subject to limitations under RCW 26.09.191 [which limits residential time 
       if the parent has engaged in willful abandonment, abuse, domestic violence or 
       assault];
              (5)  The reasons of each person for seeking or opposing the relocation and 
       the good faith of each of the parties in requesting or opposing the relocation;
              (6)  The age, developmental stage, and needs of the child, and the likely 
       impact the relocation or its prevention will have on the child's physical, 
       educational, and emotional development, taking into consideration any special 
       needs of the child;
              (7)  The quality of life, resources, and opportunities available to the child 
       and to the relocating party in the current and proposed geographic locations;
              (8)  The availability of alternative arrangements to foster and continue the 
       child's relationship with and access to the other parent;
              (9)  The alternatives to relocation and whether it is feasible and desirable 
       for the other party to relocate also;
              (10) The financial impact and logistics of the relocation or its prevention; 
       and
              (11) For a temporary order, the amount of time before a final decision can 
       be made at trial.

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No. 41140-7-II

RCW 26.09.520; Horner, 151 Wn.2d at 887-88.

       The trial court must consider all of these child relocation factors, thus ensuring that it 

evaluates the interests of the child and the relocating person within the context of competing 

interests and circumstances.  Horner, 151 Wn.2d at 895.  The court should enter written findings 

on each factor but may focus on the factors most relevant in a given case.  Horner, 151 Wn.2d at 

895; Pennamen, 135 Wn. App. at 804.  

       Here, the trial court entered written findings after considering each factor listed above.  

The court found that factors 1, 6, 8, and 9 weighed against relocation.  Rylee had strong bonds 

with both parents and extended family in Washington, but no family in Kentucky other than that 

of her stepfather.  RCW 26.09.520(1).  The proposed relocation would negatively affect Rylee's 

emotional development because the extended families of both Driskill and Rogers were in 

Washington or nearby, and Rylee would be isolated from them in Kentucky.  RCW 26.09.520(6).  

The arrangements Driskill had proposed for allowing Rogers access to Rylee -- i.e., web-cam, 

internet, telephone and mail contact, as well as visits -- would not mitigate the loss of personal 

contact between the two.  The court further noted that it did not appear that Driskill and her 

husband could afford to fly Rylee back to Washington very often.  RCW 26.09.520(8).  Finally, in 

considering the alternatives to relocation, the court found that Driskill had not shown she could 

not obtain employment in Washington, and she owns a house in Pierce County.              Rylee's 

stepfather was not the sole source of care for his parents in Kentucky; several members of his 

family live nearby.  The court also found that it was not realistic for Rogers to relocate to 

Kentucky.  He has established his professional reputation as a union glazier in western 

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No. 41140-7-II

Washington, and there was no showing that he could transfer his union membership to Kentucky 

or obtain a job there.  RCW 26.09.520(9).  

       Factor 11 did not apply because a temporary order was not at issue.  RCW 26.09.520(11).  

The court found the remaining statutory factors neutral in their impact on the proposed 

relocation.  There was a tacit understanding but no firm agreement between the parties that 

Driskill would not relocate with Rylee.  RCW 26.09.520(2).  The court found that disrupting 

contact between Rylee and Driskill, the primary residential parent, would be more detrimental to 

Rylee than disrupting contact with Rogers, but it again noted that alternatives to relocation 

existed in that Rickie Driskill's family could take care of his parents.  RCW 26.09.520(3).  No 

limitations under RCW 26.09.191 existed for either parent.  RCW 26.09.520(4).  Driskill had a 

good reason for seeking the proposed relocation, and Rogers had a good reason for opposing it.  

RCW 26.09.520(5).  The resources and opportunities available to Rylee in Washington and 

Kentucky were roughly equal.  RCW 26.09.520(7).  Finally, although not allowing the proposed 

relocation would have a negative financial impact on Driskill's family, much of that impact was of 

her own making.  Before obtaining the court's resolution of the proposed relocation, Driskill 

resigned from a "very good job" and leased out her house for two years.  CP at 297.  As a result, 

the financial impact   factor was also neutral regarding the proposed relocation.  RCW 

26.09.520(10).

       After finding that six factors were neutral and that four weighed against relocation, the 

court concluded that the detrimental effect of the proposed relocation on Rylee outweighed its 

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No. 41140-7-II

beneficial effect.  As a consequence, Rogers had rebutted the statutory presumption in favor of 

her proposed relocation.  Pennamen, 135 Wn. App. at 801.  

       Driskill argues on appeal that the court should have interpreted the six neutral factors as 

favoring the presumption in favor of relocation.  She contends that with the presumption applying 

to those six factors, the court would have had no choice but to permit the proposed relocation.

       Rogers responds that Driskill has not assigned error to any of the court's findings, thereby 

rendering them verities on appeal.  In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).  

Rogers also correctly asserts that there is no authority requiring courts to consider factors found 

to be neutral on the relocation question to actually weigh in favor of relocation.  By characterizing 

several factors as neutral, the court found by definition that they did not weigh either for or 

against relocation.  We will not reassess the factors on appeal and come to a different resolution.  

See Pennamen, 135 Wn. App. at 803 (declining to reweigh statutory factors and come out 

differently).  

       Furthermore, the trial court rejected Driskill's argument that the six neutral factors 

outweighed the remaining factors when it denied her motion for reconsideration.  The court 

observed that "even if the findings on the 'neutral' factors are interpreted as supporting the 

presumption in favor of relocation, the findings on the four factors that weighed against relocation 

carried enough weight to overcome the presumption in favor of relocation." CP at 313.  The trial 

court considered all of the statutory factors and found that four rebutted the statutory 

presumption and weighed against relocation.  The court did not abuse its discretion in making that 

determination and denying the proposed relocation.

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No. 41140-7-II

Harm Caused by Relocation

       Driskill also argues that the trial court erred by denying the proposed relocation because 

any harm the move to Kentucky would cause Rylee would be only the normal harm caused by any 

move.  As support for this standard, she cites In re Marriage of Littlefield, 133 Wn.2d 39, 940 

P.2d 1362 (1997).  Littlefield interpreted RCW 26.09.191(3), which allows trial courts to restrict 

a parent's actions under a parenting plan.  133 Wn.2d at 54.  To restrict the primary residential 

parent's relocation, the Supreme Court held in Littlefield that a trial court would have to find the 

harm caused by the proposed relocation to be "more than the normal distress suffered by a child 

because of travel, infrequent contact of a parent, or other hardships which predictably result from 

a dissolution of marriage." 133 Wn.2d at 55.  

       The legislature subsequently enacted the child relocation act, codified at RCW 26.09.405 

to .560, and expressly overruled Littlefield as the judicial standard for relocations.  Laws of 2000, 

ch. 21, § 1; 20 Scott J. Horenstein, Washington Practice:  Family and Community Property Law, 

§ 33.26 at 103 (Supp. 2011).  Consequently, the decision has little precedential value, particularly 

where the relocation standards articulated in RCW 26.09.520 are at issue.  Pennamen, 135 Wn. 

App. at 803.  We decline to apply it here.  

       In addition to citing Littlefield, Driskill maintains that the trial court failed to look at the 

financial reality of her situation and at the evidence showing that denying Rylee's relocation 

would be far more detrimental than allowing it.  Here again, she asks us to weigh the evidence, 

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No. 41140-7-II

which we cannot do.  Fahey, 164 Wn. App. at 62.  The trial court considered the same testimony 

that Driskill cites and reached a different conclusion.  We find no abuse of discretion and affirm.  

       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 pursuant to RCW 2.06.040, it is so 

ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

VAN DEREN, J.

WORSWICK, A.C.J.

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