In re McKinley

1

In re: CHRISTY McKINLEY, Appellant, and LARS SOMMER, Respondent.

No. 84636-1-I

Court of Appeals of Washington, Division 1

April 17, 2023

UNPUBLISHED OPINION

DWYER J.

Christy McKinley challenges the final parenting plan and order of child support concerning her son, J.S. McKinley asserts that the trial court erred in numerous respects, including by failing to enter necessary written findings of fact and conclusions of law, denying the admission of certain photographs into evidence, admitting the testimony of two witnesses, not entering restrictions against the child's father, and ordering equal residential time for both parents. We agree that the trial court erred by not entering necessary written findings of fact and conclusions of law and remand for the trial court to enter such findings and conclusions consistent with and based on the existing record. In the absence of such findings and conclusions, we are precluded from reviewing some of McKinley's claims of error regarding the terms of the parenting plan. We otherwise affirm as to all remaining issues.

I

Sommer and McKinley were in a dating relationship and living together in University Place, Washington when McKinley gave birth to J.S. on September 15, 2018. Sommer and McKinley separated in September 2019, but continued to reside in the same house until January 2020. McKinley has two older children from previous relationships, P.J.M. and B.R.

On January 21, 2020, McKinley filed a petition for a parenting plan and child support order. At the time of trial, McKinley requested that the trial court adopt the residential schedule from the temporary orders, which had J.S. residing with Sommer every other weekend plus a weekly Wednesday overnight and alternating holidays. McKinley also asked the trial court to enter RCW 26.09.191 restrictions against Sommer based on claims of a long-term emotional impairment and a long-term impairment resulting from substance abuse.

A bench trial was conducted over five days between December 6 and December 14, 2021. The trial court heard testimony from McKinley, Sommer, J.S.'s former nannies Savannah Caillier and Olivia Dieffenbach, P.J.M.'s father Ben Porter, and attorney Ken Kagan.

McKinley's request for .191 restrictions was based primarily on Sommer's prior drug use. Sommer admitted that he had, at various times, used illicit substances including cocaine LSD^[1] otherwise known as "acid," MDMA^[2]otherwise known as "Molly," MDA^[3], and psilocybin otherwise known as "mushrooms." However, Sommer testified that he had not used any illicit substances since August 2019. He also testified that the last time he had used marijuana or THC was December 2019. Furthermore, Sommer had taken a drug test as ordered by the court, which came back negative for all substances. McKinley, on the other hand, argued that Sommer was downplaying the seriousness of his drug use and presented testimony and multiple exhibits to that effect. McKinley also argued that Sommer displayed "aggression," "abusiveness," "hostility," and "intimidation," and that these provided an independent basis upon which the court could impose restrictions.

The trial court announced its final decision in the matter at a January 28, 2022 hearing. The trial court noted that "[c]redibility in this case was very informative," though it did not specify who it found to be credible as to which issues. The trial court did not view the dispute between McKinley and Sommer as a "high conflict case." The trial court rejected McKinley's request for .191 restrictions, stating:

At times there has clearly been evidence about some lapse in judgment on both sides. There [have] been some allegations, I guess, of maybe, well, at most neglect. There is absolutely no evidence that either one of you have ever done anything intentionally that would harm your son.

Neither party has established any RCW 26.09.191 limitations including the long-term drug history or any domestic violence issues. I am not ordering a drug evaluation or any further testing.

Mr. Sommer, I think you've learned a lesson from this trial that the courts frown on drug use and definitely not you know, you are not to use any substance, whether that's alcohol or anything else when your child is with you.

I am not putting a limitation in the parenting plan saying either one of you are prohibited from alcohol or drugs because I believe that the evidence has shown me you are both responsible adults and will not do anything that would jeopardize the health and safety of your son.

The trial court opted for a 50/50 split of residential time because it saw "no reason to limit parenting time to either parent."

The trial court entered a final parenting plan and an order of child support on January 27, 2022. The trial court did not separately enter written findings of fact and conclusions of law. The sole finding of fact contained in the parenting plan states that "[t]he Court adopts the statements in section 3 (Reasons for putting limitations on a parent) as its findings." The parenting plan makes no mention of any oral statements made by the trial court.

Although designated as a final order, the order for child support stated that "[t]his support order will be reviewed on May 23, 2022," and that the parties should present updated financial information, including their 2021 tax filings. In that order, the trial court directed McKinley to provide to Sommer "a client summary of all billed and administrative hours (client names redacted) as well as the days and specific hours the childcare provider provides care for the child between the parties" after J.S. entered preschool. The court declined to award attorney fees or costs to either party.

McKinley filed a notice of appeal on February 28, 2022.

On September 2, 2022, the trial court entered a new temporary child support order. Therein, the court set another review hearing for May 4, 2023. This order did not contain a provision requiring McKinley to provide a client summary to Sommer.

II

McKinley asserts that the trial court erred by failing to enter findings of fact and conclusions of law reflecting its consideration of the factors enumerated in RCW 26.09.187(3)(a) in conjunction with the parenting plan.^[4] We agree.

The trial court is required to enter findings of fact and conclusions of law in connection with all final decisions in custody matters. CR 52(a)(2)(B). The purpose of findings of fact and conclusions of law is to ensure that the trial court "'has dealt fully and properly with all the issues in the case before [the court] decides it and so that the parties involved and this court on appeal may be fully informed as to the bases of [the court's] decision when it is made.'" In re Det. of LaBelle, 107 Wn.2d 196, 218-19, 728 P.2d 138 (1986) (internal quotation marks omitted) (quoting State v. Agee, 89 Wn.2d 416 421,573 P.2d 355 (1977)). If a trial court has not entered findings of fact that are "'sufficiently specific'" to allow for meaningful review, this court may remand the cause to the trial court to enter the necessary findings based on the record of the prior proceedings. In re Dependency of A.D., 193 Wn.App. 445, 462-63, 376 P.3d 1140 (2016) (quoting LaBelle, 107 Wn.2d at 218). This is the remedy we impose herein.

RCW 26.09.187(3)(a) dictates that the trial court make residential provisions for all children named in a parenting plan after considering seven specifically enumerated factors. Those factors are as follows:

(i) The relative strength, nature, and stability of the child's relationship with each parent; (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 as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;

(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.

RCW 26.09.187(3)(a). Ordinarily, the trial court is required to enter findings of fact and conclusions of law reflecting its consideration of the seven enumerated factors. "When written findings of fact do not clearly reflect a consideration of the statutory factors, resort can be made to the court's oral opinion." In re Marriage of Murray, 28 Wn.App. 187, 189, 622 P.2d 1288 (1981) (citing In re Marriage of Dalthorp, 23 Wn.App. 904, 911-12, 598 P.2d 788 (1979)). However, the trial court's oral opinion must still reflect its application of the statutory factors and consideration of the best interests of the child, Murray, 28 Wn.App. at 189-90, and must be sufficiently specific so as to permit appellate review.

It is undisputed that the trial court did not enter written findings of fact and conclusions of law in this matter. The only finding of fact that appears in the parenting plan states: "The Court adopts the statements in section 3 (Reasons for putting limitations on a parent) as its findings." Section 3 simply states that neither parent has a problem with abandonment, neglect, child abuse, domestic violence, assault, sex offense, or any other problem that may harm the child's best interests that would warrant a restriction pursuant to RCW 26.09.191.

The trial court's...