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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41562-3 |
| Title of Case: |
In Re The Marriage Of Diana Sushak, Respondent V Bobby Beasley, Jr., Appellant |
| File Date: |
05/15/2012 |
SOURCE OF APPEAL
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| Appeal from Thurston Superior Court |
| Docket No: | 10-3-00740-8 |
| Judgment or order under review |
| Date filed: | 12/09/2010 |
| Judge signing: | Honorable Paula K Casey |
JUDGES
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| Authored by | Christine Quinn-Brintnall |
| Concurring: | J. Robin Hunt |
| Lisa Worswick |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Bruce J. Finlay |
| | Attorney at Law |
| | Po Box 3 |
| | Shelton, WA, 98584-0003 |
Counsel for Respondent(s) |
| | Judith Anne Redford-Hall |
| | The Redford Law Firm |
| | 2625 Parkmont Ln Sw Ste C |
| | Olympia, WA, 98502-1038 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of No. 41562-3-II
DIANA SUSHAK,
Respondent,
and
BOBBY BEASLEY, JR., UNPUBLISHED OPINION
Appellant.
Quinn-Brintnall, J. -- In this parenting plan dispute, Bobby Beasley, Jr. appeals the trial
court's order reducing his visitation schedule with his son, C.B. Beasley asserts that the trial
court's order is a parenting plan modification rather than a clarification. Beasley also assigns
error to the trial court's appointment of counsel to represent C.B. and its decision to reserve
ruling on the issue of attorney fees. Because Diana Sushak's motion to clarify the parenting plan
should have been a motion to modify the plan, we remand to the trial court to reconsider her
motion under the standards applicable to a request to modify. And because the parties and their
counsel appear to have been unwilling to resolve scheduling issues to further C.B.'s best interests,
we hold that the trial court did not err by appointing C.B. counsel. We do not address the trial
court's reservation of the issue of attorney fees because the reservation is not an appealable final
No. 41562-3-II
order or judgment subject to review. RAP 2.2.
FACTS
On March 17, 2009, the trial court entered a permanent parenting plan for C.B.1 The trial
court granted Beasley visitation every Wednesday afternoon from 2 pm until 5 pm, and every
other weekend. To accommodate C.B.'s chronic kidney condition, the plan provided,
If the child returns to dialysis or has any major changes in his medical routine, both
parents will attend mediation by a court approved mediator or agency to make
adjustments in parenting plan to accommodate the child's new routine. Mediation
shall be scheduled immediately following the time that the parents become aware
of the need for the shift in the child's medical routine.
Br. of Appellant, Ex. 1 at 7.
On December 1, 2010, Sushak filed a "motion to clarify" the parenting plan, requesting
"an interim change to the visitation schedule of minor child because of critical changes in the
child's medical circumstances" and an opportunity to give "oral testimony to clarify the urgency
of the[] medical changes to the minor child." Clerk's Papers (CP) at 5. The trial court heard the
parties on December 9, the same day C.B. restarted dialysis treatment. C.B. would receive four-
hour dialysis treatments on either a Monday-Wednesday-Friday or Tuesday-Thursday-Saturday
schedule; either would interfere with Beasley's visitation schedule under the existing parenting
plan.
1 Beasley did not include the parenting plan in the record for this court's review. RAP 9.6(a),
10.3(a)(8). We ordered Beasley to supplement the record on March 8, 2012. RAP 9.10. It
appears that, following a file transfer from Mason County to Thurston County, Beasley's
counsel's Clerk's Papers designation was insufficiently specific for the Thurston County Clerk to
provide the requested pages to this court. RAP 9.7(a). Although we would normally refuse to
address challenges presented by an appellant who fails to designate a record sufficient for our
review, in this unique circumstance, justice is better served by accepting respondent's counsel's
representation that we have a true and correct copy of the necessary document. RAP 1.2(c),
10.3(a)(8).
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No. 41562-3-II
At the hearing, Sushak stated that the parents needed an "alternate parenting plan that
addresses those times when [C.B.] is in need of critical care." Report of Proceedings (RP) at 12.
The trial court appointed Kristen Bishopp2 to represent C.B. over Beasley's objections. The trial
court then ordered that while C.B. received dialysis treatment, Beasley's visitation schedule would
be every other Wednesday and every other weekend. The trial court reasoned that the temporary
reduction in Beasley's visitation was necessary because C.B. was "so busy going to his dialysis
appointments." RP at 34. The trial court also ordered the parties to mediation "not for
modification of the parenting plan, but . . . about accommodating the new issues with respect to
[C.B.'s] dialysis and his upcoming kidney transplant and recovery."3 RP at 35-36.
Beasley timely appeals.
DISCUSSION
Motion to Clarify
Beasley asserts that the trial court erred by modifying the parenting plan in its order
clarifying residential time during dialysis and transplant. We agree. We review a trial court's
rulings as to parenting plans for an abuse of discretion. In re Marriage of Christel and
Blanchard, 101 Wn. App. 13, 20-21, 1 P.3d 600 (2000) (citing In re Marriage of Wicklund, 84
Wn. App. 763, 770, 932 P.2d 652 (1996)). "A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons." Blanchard, 101
Wn. App. at 21 (citing Wicklund, 84 Wn. App. at 770 n.1).
"A permanent parenting plan may be changed in three ways: by agreement, by petition to
2 Bishopp agreed to represent C.B. pro bono.
3 The parties mediated on December 27, 2010. The CR2A Agreement clarifies transportation
arrangements between the parents' homes.
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No. 41562-3-II
modify, and by temporary order." Blanchard, 101 Wn. App. at 22. To modify a parenting plan,
the court must find a "substantial change of circumstances," even if the modification is minor.
RCW 26.09.260(1), (4); Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 807, 929 P.2d 1204
(1997). A "modification" occurs "when a party's rights are either extended beyond or reduced
from those originally intended." Blanchard, 101 Wn. App. at 22. A "clarification," on the other
hand, is "'merely a definition of the rights which have already been given and those rights may be
completely spelled out if necessary.'" Blanchard, 101 Wn. App. at 22 (quoting Rivard v. Rivard,
75 Wn.2d 415, 418, 451 P.2d 677 (1969)).
Here, the trial court stated,
So it is true that this matter is not before me for any modification of the parenting
plan, and I am not going to modify the parenting plan, but these are critical times.
. . . .
I am going to make some orders that I consider to be clarifications and
within the scope of this parenting plan first.
RP at 30. At oral argument before this court, Sushak was unable to identify which provision of
the plan the trial court had "clarified." Our review of the record reveals none. The only relevant
provision provides that if C.B. "returns to dialysis or has any major changes in his medical routine,
both parents will attend mediation by a court approved mediator . . . to make adjustments in
parenting plan to accommodate the child's new routine." Br. of Appellant, Ex. 1 at 7. This
provision does not provide that the trial court will reduce Beasley's visitation if C.B. returns to
dialysis. The provision also does not provide that the parties may circumvent mediation by filing
motions with the trial court.
Despite the trial court stating the order was merely a clarification of the parenting plan
required by "critical times," the effect of the order is a reduction in Beasley's weekly Wednesday
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No. 41562-3-II
visits with C.B. As such, the order is a modification of the parenting plan and not a clarification
of an ambiguous existing provision. Blanchard, 101 Wn. App. at 22 (citing Rivard, 75 Wn.2d at
418). Accordingly, because, here, Sushak should have filed a motion to modify the parenting
plan, even if temporarily, we vacate the order and remand for reconsideration of her motion as a
request to modify the parenting plan while C.B. receives dialysis treatment. RCW 26.09.260(1),
(4); Kirshenbaum, 84 Wn. App. at 807. Because we vacate the order, we note that the parties
may avoid further litigation by mediating their scheduling dispute as the parenting plan provides.
Counsel Appointment
Next, Beasley assigns error to the trial court's appointment of Bishopp to represent C.B.'s
interest during the December 9 hearing. Beasley argues that Bishopp was biased in favor of
Sushak because Sushak had contacted Bishopp regarding C.B.'s representation. We disagree.
A court may appoint an attorney to represent a child's interests in parenting plan
provisions. King v. King, 162 Wn.2d 378, 387, 174 P.3d 659 (2007) (citing RCW 26.09.110).
Here, the trial court found that neither the parties nor their attorneys were attempting to
negotiate, mediate, or reconcile disputes in C.B.'s best interests. The trial court thus concluded
that C.B. "needs a lawyer in this case" and appointed Bishopp, stating, "If I determine that she
seems to be aligned with one side, we will do a different appointment." RP at 23.
Although Bishopp had not filed a written report, she offered orally that C.B. was "very
tired" and struggled with the mid-week visitation with Beasley. RP at 25. Bishopp then
conveyed other concerns C.B. had shared with her and recommended that the parties clarify short-
term issues at mediation "until we can get back to resuming a completely normal parenting plan
that we have in place." RP at 27-29. Beasley objected to Bishopp's statements on due process
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No. 41562-3-II
grounds, arguing without citation to legal authority that he had a constitutional right to notice of
his son's concerns before they were conveyed to the trial court.
At oral argument, both attorneys conceded to a lack of communication regarding
mediation. The sparse record provided for our review also supports the trial court's finding that
neither the parties nor their attorneys attempted to mediate or negotiate in C.B.'s best interests.
RAP 9.2(a), 9.6. Indeed, the record shows one November 8, 2010 e-mail from Sushak to
Beasley, stating, "I have contacted a mediation group in Olympia to mediate the parenting plan.
They will be contacting you to arrange a date." CP at 30. Beasley responded eight days later, on
November 16, stating only, "Please have your attorney contact my attorney regarding any
mediation questions." CP at 31. Sushak responded that afternoon, stating, "I have contacted
mediation about mediating the parenting plan to accomondate [sic] [C.B.'s] medical needs. I was
informed that you felt there was no need at this time and wish not to mediate at this time. Could
you verify this for me?" CP at 31-32.
The parents did not discuss mediation further and neither attorney contacted the other to
facilitate mediation as required by the parenting plan. Instead, on December 1, Sushak filed the
motion to clarify that should have been a motion to modify. Under these circumstances, where
neither party nor attorney appears to have endeavored to mediate in C.B.'s best interest, the trial
court did not err in appointing Bishopp to represent the child's interests. King, 162 Wn.2d at 387
(citing RCW 26.09.110). Moreover, we note that nothing in the record before us supports
Beasley's allegation of Bishopp's personal bias against him.
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No. 41562-3-II
Reservation of Attorney Fees
Next, Beasley assigns error to the trial court's reservation of the issue of his requested
attorney fees. Because the reservation of attorney fees is not a final order or judgment subject to
our review, we do not address the merits of this assignment of error. RAP 2.2.
Service
Last, we briefly note that Sushak's assertion that Beasley failed to properly serve and
perfect his appeal is meritless. RAP 5.4(b) provides, "The party filing the notice of appeal . . .
shall . . . serve a copy of the notice [of appeal] on each party of record." CR 5(b)(1) provides,
"Whenever under these rules service is required or permitted to be made upon a party represented
by an attorney the service shall be made upon the attorney unless service upon the party himself is
ordered by the court." Here, Beasley served Sushak's attorney and, thus, complied with service
requirements. Even if Beasley had not properly served Sushak, because Sushak does not argue
she suffered prejudice by the allegedly deficient service as required by RAP 5.4(b), her argument
fails.
We note that the parties are free, if not required, to mediate temporary scheduling
adjustments while C.B. receives dialysis treatment. Especially in light of the apparent
communication issues between the parties and their attorneys, we hold that the trial court did not
err by appointing counsel to represent C.B.'s interests during the December 9 hearing.
Accordingly, because Sushak should have moved to modify the parenting plan rather than file a
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No. 41562-3-II
motion to clarify an unidentified plan provision, we vacate the trial court's order purporting to
clarify the plan and remand for reconsideration of Sushak's motion in accord with this opinion.
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.
QUINN-BRINTNALL, J.
We concur:
HUNT, J.
WORSWICK, A.C.J.
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