* In Re The Marriage Of: Kathryn Rostrom, Resp V. Dale Rostrom, App

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of 	)
KATHRYN SUE ROSTROM, 	)
Respondent, 	)
and 	)
DALE LEE ROSTROM, 	)
Appellant. 	)
No. 71860-6-1
DIVISION ONE
PUBLISHED OPINION
Filed: 	December 1, 2014
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Leach, 	J. 	— Dale Rostrom appeals a trial court decision that allowed
Kathryn Rostrom to move their minor children from the United States to Australia.
Dale1 challenges a number of the court's findings of fact. 	He also claims that the
court did not order adequate safeguards for enforcement of the parenting plan
after the children moved. 	The trial court considered the factors required by the
relocation statute, and substantial evidence supports the court's findings. 	But the
court's 	parenting 	plan 	does 	not 	include 	significant stipulations 	made 	by the
parties about the trial court's continuing jurisdiction to modify and 	enforce its
orders. 	We remand to the trial court with directions to amend the parenting plan
to 	incorporate these 	stipulations, 	to 	consider 	if it should 	require 	a 	bond 	to
guarantee compliance with any parenting plan provisions, and 	to require the
1 For clarity, we refer to the parties by their first names.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71860-6-1/2
parties to register the amended 	parenting 	plan 	in the Australian 	Family Law
Court. We otherwise affirm.
FACTS
Dale Rostrom and Kathryn Rostrom married in 1996 and have a son and
daughter, who were 6 and 11 years old at the time of trial. 	Kathryn worked as a
high level executive for technology companies. 	Dale worked as an automotive
technician 	and, 	after 	returning 	to 	school, 	in the 	field 	of 	computer-assisted
drafting. 	While on a business trip to Shanghai, China, in October 2012, Kathryn
met John Foster, a resident of Australia. 	The following month, Kathryn visited
Foster in Australia, 	and 	the two 	became 	romantically 	involved. 	When 	she
returned, Kathryn asked Dale to move out of the family home, which he did on
November 11, 2012.
Later that month, Kathryn filed a petition to dissolve the marriage. 	After
the separation, tensions within the family and especially between Dale and K.R.,
the couple's daughter, became more pronounced. 	On August 18, 2013, Dale
was arrested for driving under the influence (DUI). 	The trial court suspended the
children's overnight visits with him for six months.
The parties settled all issues at mediation on September 24, 2013, signing
a CR 2A agreement and an agreed parenting plan. 	In October 2013, Kathryn
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NO. 71860-6-1/3
visited 	Foster 	in Australia, 	and 	they 	became 	engaged 	to 	be 	married. 	In
November, Kathryn discovered she was pregnant with Foster's child.
On November 25, 2013, Kathryn filed a notice of intended relocation to
Australia. 	On December 10, 2013, Dale filed an objection.
On December 24, 2013, the court denied Dale's motion to invalidate the
CR 2A agreement, noting in its order, "Entry of final orders at this time does not
affect resolution of the issue of relocation now pending, which will be resolved on
its own merits." 	On December 30, 2013, the trial court entered final orders for
support, 	findings 	of fact 	and 	conclusions 	of law, 	a 	parenting 	plan, and 	a
dissolution 	decree. 	The 	parenting 	plan 	designated 	Kathryn 	the 	primary
residential parent and granted Dale visitation subject to certain restrictions based
on "[a] long-term impairment resulting from drug, alcohol, or other substance
abuse that interferes with the performance of parenting functions."
In April 2014, the same trial judge presided over a four-day bench trial on
relocation. On May 2, 2014, the court entered a new parenting plan and an order
allowing 	relocation. 	On 	May 4, 2014, 	Kathryn 	moved with 	the 	children to
Australia. 	On 	May 	28, 	2014, 	a 	commissioner of this court denied 	Dale's
emergency motion for a stay pending appeal.
Dale appeals.
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NO. 71860-6-1/4
STANDARD OF REVIEW
The United States Constitution protects parental rights as a fundamental
liberty interest.2 	We 	review a 	trial court's 	relocation 	decision 	for abuse 	of
discretion.3 	A 	court 	abuses 	its 	discretion 	when 	it 	makes 	a 	manifestly
unreasonable 	decision 	or 	bases 	its 	decision 	upon 	untenable 	grounds 	or
reasons.4 	This can occur when a 	court applies an incorrect legal standard,
substantial evidence does not support the court's findings, or the findings do not
meet the requirements of the correct standard.5
This court does not review the trial court's credibility determinations or
weigh conflicting evidence.6 	Given the strong interest in the finality of marriage
dissolution proceedings, we defer to the trial court and will affirm "unless no
reasonable judge would have reached the same conclusion."7
2 Santoskv v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d
599(1982).
3 In re Marriage of Kim, 179 Wn. App. 232, 240, 317 P.3d 555 (citing In re
Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004); Bay v. Jensen,
147 Wn. App. 641, 651, 196 P.3d 753 (2008)), review denied, 180 Wn.2d 1012
(2014).
4 State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).
5 Kim, 179 Wn. App. at 240 (citing Horner, 151 Wn.2d at 894).
6 In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
7 Kim, 179 Wn. App. at 240 (citing In re Marriage of Landry, 103 Wn.2d
807, 809-10, 699 P.2d 214 (1985)).
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NO. 71860-6-1/5
ANALYSIS
The UCCJEA, the CRA, and the Hague Convention
Dale claims that the court's current orders do not allow "the Washington
trial court to guarantee the Relocation Order or 	Parenting 	Plan are currently
enforceable" in Australia. 	He contends that the court abused its discretion by
permitting 	relocation 	"without 	assuring 	the 	Washington 	courts' 	continuing
jurisdiction." 	Because the court "did not fully understand the Convention or
Australian Law," Dale argues, the court jeopardized his visitation rights and the
possibility of the children's return.
Under 	the 	Uniform 	Child 	Custody 	Jurisdiction 	and 	Enforcement 	Act
(UCCJEA), 	chapter 	26.27 	RCW, 	a 	court 	making 	a 	valid 	initial 	custody
determination retains exclusive, continuing jurisdiction until
(a) A court of this state determines that neither the child, the
child's parents, and any person acting as a parent do not have a
significant connection with this state and that substantial evidence
is no 	longer available 	in this 	state concerning the child's 	care,
protection, training, and personal relationships; or
(b) 	A 	court 	of 	this 	state 	or 	a 	court 	of 	another 	state
determines that the child, the child's parents, and any person acting
as a parent do not presently reside in this state.[8]
For purposes of the UCCJEA, Washington courts treat a foreign 	country the
same as a state of the United States.9
8 RCW 26.27.211(1)(a)-(b).
9 RCW 26.27.051.
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NO. 71860-6-1/6
Both the United States and Australia signed the Hague Convention on the
Civil Aspects of International Child Abduction (Hague Convention).10 	The goals
of the Hague Convention are to "secure the prompt return of children wrongfully
removed to or retained in any Contracting State" as well as "to ensure that rights
of custody and of access under the law of one Contracting State are effectively
respected in the other Contracting States."11
In child relocation matters, Washington State courts have wide discretion
to decide where and with which parent a child will reside.12 The determination "is
inherently a subjective one."13 	However, the child relocation act (CRA), RCW
26.09.405-.560, provides guidance to courts.14 The CRA directs consideration of
the 	best interests of both the 	child and the 	relocating person.15 	It creates a
rebuttable presumption permitting relocation based on the idea "that a fit parent
will act in the best interests of her child."16 	The party objecting to the relocation
has the burden of demonstrating, by a preponderance of the evidence,17 that "the
'detrimental effect of the relocation outweighs the benefit of the change to the
10 Oct. 25, 	1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49, codified at 42
U.S.C. §§11601-11610.
11 Hague Convention, art. 1; 42 U.S.C. § 11601.
12 See In re Marriage of Grigsbv, 112Wn. App. 1,6, 57 P.3d 1166(2002).
13 Grigsbv, 112 Wn. App. at 14.
14RCW26.09.405-.560.
15 Horner, 151 Wn.2d at 886-87 (citing RCW 26.09.520).
16 Horner, 151 Wn.2d at 895.
17 Kim, 179 Wn. App. at 241 (citing Horner, 151 Wn.2d at 895-97).
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NO. 71860-6-1/7
child and the relocating person.'"18 	When deciding if the objecting party has met
this burden, the court must consider each of the relevant child relocation factors
enumerated in RCW 26.09.520, which "are equally important because they are
neither weighted nor listed in any particular order."19 The factors are
(1) 	The 	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 relocation;
(4) 	Whether 	either 	parent 	or 	a 	person 	entitled 	to
residential time with the child is subject to limitations under RCW
26.09.191;
(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
18 Homer, 151 Wn.2d at 895 (quoting RCW 26.09.520).
19 Horner, 151 Wn.2d at 894.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71860-6-1/8
(11) 	For a temporary order, the amount of time before a
final decision can be made at trial.[20]
Findings and Conclusions under RCW 26.09.520
The trial court found that Dale failed to rebut the presumption that the
benefits of relocation outweighed any detrimental effects and permitted Kathryn
to move with the children to Australia. 	The court explicitly considered the 10
applicable statutory factors listed in RCW 26.09.520 and entered corresponding
findings of fact. 	Dale makes 25 assignments of error, challenging 6 of the court's
10 findings 	on 	the 	relocation factors. 	He also 	assigns 	error to the 	court's
conclusion that "a residential plan can be made that allows [him] to maintain a
close bond with his children despite their relocation with [Kathryn] to Australia"
and makes several other challenges.
Finding of fact 2.3.1, regarding the relative strength, nature, guality, extent of
involvement, and stability of the children's relationship with each parent, siblings,
and other significant persons in the child's life:
Dale challenges the court's finding that "the children's relationship is more
stable with and dependent upon [Kathryn] than with [Dale]." He also disputes the
court's finding that Janet Tatum, the children's counselor, "confirms challenges
[Dale] has with the daughter and his overall parenting skills." 	And though the
court found that the children's relationships with extended family "can and should
be maintained," Dale claims that the trial court did not adequately address RCW
20 RCW 26.09.520.
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NO. 71860-6-1/9
26.09.520(1) because the court "discussed no mechanism for maintaining the
relationship given the distance to Australia and travel logistics," made "no finding
that [Kathryn's] new partner has any significant relationship with the children,"
and disregarded the fact that "[o]ther than [Kathryn], all significant persons in the
children's lives are in Washington."
The record supports the trial court's findings on the relative strength of the
children's relationships with Dale and Kathryn. 	The court heard testimony from
Dale and 	Kathryn 	as well 	as 	a 	number of other family 	members, 	including
Kathryn's mother, sister, and brothers. 	Although Dale's girl friend testified about
the loving relationship Dale has with the children, she also described tensions
and a change in K.R.'s behavior since the relocation process began. 	She noted
that K.R. has been "acting up," is sometimes moody, and that "there's a strain" in
her relationship with Dale.
Janet 	Tatum, 	the 	children's 	counselor, 	also 	described 	the 	"strained"
relationship between Dale and K.R. 	Parenting evaluator Wendy Hutchins-Cook
expressed a "concern about providing [parent coaching] recommendations to get
this 	on 	a 	better 	track 	with 	Dad 	and 	daughter." 	Hutchins-Cook 	ultimately
recommended that the children have "limited time" with 	Dale because of his
alcohol problems and no overnight visits until he had had six months of clean
urinalysis tests. 	The court found that "[Dale's] love of the children and theirs for
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NO. 71860-6-1/10
him 	is 	not 	questioned, 	but 	he 	is 	not 	as 	able 	as 	[Kathryn] 	to 	appropriately
communicate, nurture, and manage the children's developmental needs."
The court also considered the strength of the children's relationships with
extended family and other significant persons. 	Kathryn's brother opposed the
relocation but conceded that he sees the children only a few times a year at most
and rarely communicates with his sister. 	Dale's brother also opposed the move
but acknowledged on cross-examination that he sees the children "on average
one to two times a year." 	Kathryn's mother, Diane Roberts, who had specified
visitation 	under 	the 	prerelocation 	parenting 	plan, 	testified 	about 	the 	bond
between the children and their parents as well as her own bond with the children.
She supported the relocation. 	Lucinda Frank, Kathryn's sister, who worked as
the children's nanny at various times between 2009 and 2012, testified similarly.
Substantial evidence supports the court's findings about Dale's challenges
with K.R. and his overall parenting skills and the court's finding that the children's
relationship 	is 	more 	stable 	with 	and 	dependent 	upon 	Kathryn 	than 	Dale.
Substantial 	evidence 	also 	shows 	that 	the 	court 	considered 	the 	children's
relationships with other significant persons.
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NO. 71860-6-1/11
Finding of fact 2.3.3. as to whether disrupting contact between the children and
Dale would be more detrimental than disrupting contact between the children and
Kathryn:
Dale disputes the trial court's finding that Kathryn was "better able to
manage 	and 	nurture 	the 	children, 	and 	to 	foster 	a 	continuing 	and 	positive
relationship 	between 	[Dale] 	and 	the 	children." 	Tatum 	testified 	that 	K.R.
expressed 	mixed 	feelings 	toward 	Dale, 	which 	was 	not 	unusual 	under 	the
circumstances, and that K.R. stated during counseling sessions that she and her
brother "wantfed] to go" to Australia. 	At one point, K.R. told her father, "I'm afraid
of you. 	I'd like a life in Australia." 	Diane Roberts testified that K.R. "wants to be
with her mom," and a neighbor testified that K.R. was "really excited" about the
move. 	In its findings, the court noted the bond that the children have with both
parents and acknowledged the time that Dale took off from work to care for the
children when they were younger but ultimately concluded 	that currently the
children were more dependent on Kathryn than Dale.
Dale relies on In re Marriage of Grigsbv21 to support his claim that the
detrimental 	effects 	of 	relocation 	outweigh 	the 	benefits. 	This 	reliance 	is
misplaced. 	In Grigsbv, this court upheld the denial of a relocation order, in part
because the children had never been to Dallas and had "minimal contact" with
the mother's fiance.22 Moreover, the Grigsby children had daily contact with their
21 112 Wn. App. 1, 57 P.3d 1166 (2002).
22 Grigsbv, 112 Wn. App. at 10.
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NO. 71860-6-1/12
paternal grandparents, 	who opposed 	relocation.23 	By contrast, 	the 	Rostrom
children have been to Australia and spent time with Foster both there and in
Washington. 	Extended family members with whom the children have the most
significant relationships support the relocation. 	Substantial evidence supports
the court's findings.
Finding of fact 2.3.4a, regarding limitations to which Dale is subject under RCW
26.09.191:
Dale disputes the trial court finding that "[he] minimizes his vulnerability to
alcohol and personal responsibility for his recent DUI charge. 	This jeopardizes
both 	his 	relationship 	with 	and 	the 	safety 	of the 	children. 	Accordingly, 	the
parenting plan shall contain some controls on [Dale's] use of alcohol." 	Dale
contends that the court applied an incorrect standard of a "history of alcohol use"
rather than a "long-term impairment" and violated his due process rights "when it
sua 	sponte 	imposed 	a 	restriction" 	on 	his 	alcohol 	use 	which 	neither 	party
requested.
RCW 26.09.191 grants the court broad discretion to impose restrictions on
a parent when his or her "involvement or conduct may have an adverse effect on
the child's best interests."24 	The court may preclude or limit parenting plan
provisions 	if "[a] long-term 	impairment 	resulting 	from 	drug, 	alcohol, 	or other
23 Grigsbv, 112 Wn. App. at 10.
24 RCW 26.09.191 (3).
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NO. 71860-6-1/13
substance abuse . . . interferes with the performance of parenting functions."25
Due process requires that the court provide notice of the issue to be argued but
does not require the court to provide notice of a restriction to be imposed.26
The court heard testimony about Dale's drinking from Kathryn, her sister
Lucinda Frank, and several drug and alcohol specialists. 	Kathryn and her sister
described Dale drinking heavily, especially on weekends. 	A drug and alcohol
evaluator 	diagnosed 	Dale 	with 	"Axis 	I alcohol 	dependence" 	with 	an 	initial
recommendation of a four-month relapse prevention program. 	Shortly after his
treatment exit interview in August 2013, police arrested Dale for DUI after he hit
several parked cars and registered .14 on a breath test. 	After this arrest and
Dale's self-report of seven beers at last use, the treatment recommendation for
Dale increased to one year. 	An addiction psychologist testified for Dale that until
the DUI in 2013, there was no real data that would support a substance abuse
disorder 	and 	that 	Dale 	had 	"a 	lot 	of 	recovery 	capital" 	in 	his 	favor. 	This
psychologist diagnosed Dale with a "DSMV alcohol use disorder of moderate, in
25 RCW 26.09.191 (3)(c); see also RCW 26.09.004(2)(a)-(f). 	"'Parenting
functions' 	means those aspects of the 	parent-child 	relationship 	in which the
parent makes decisions and 	performs functions 	necessary for 	the care and
growth of the child." 	RCW 26.09.004(2).
26 See In re Marriage of Pennamen, 135 Wn. App. 790, 807, 146 P.3d 466
(2006) 	(no due 	process violation 	where 	parent had 	notice that court would
consider basis of parenting plan restrictions).
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NO. 71860-6-1/14
early remission." 	Parenting evaluator Hutchins-Cook recommended that 	Dale
have "limited time" with the children because of his alcohol use.
Substantial evidence supports the court's finding that Dale minimized his
vulnerability to alcohol and his personal responsibility. At trial, he acknowledged
drinking but denied ever drinking to the point of impairment. 	When asked if he
had 	an 	alcohol 	abuse 	problem, 	he 	answered 	that 	he 	did 	not 	have 	"the
educational level or the training" to make that assessment. 	Although he cannot
drive without an 	ignition lock and attends one or two Alcoholics Anonymous
meetings each week, Dale testified that before the separation, "there was never a
[drinking] 	problem stated." 	When 	asked 	if 	he 	ever 	drank 	too 	much, 	he
responded, "Not that I'm aware of." 	When he answered other questions on the
topic, he tended to focus on technicalities, such as the meaning of "impaired" or
the methodology of determining blood alcohol content.
The trial court's imposition of restrictions on Dale's alcohol use did not
violate his right to due process. 	The parties disputed the effect of Dale's alcohol
use 	on 	parenting 	plan decisions 	throughout 	the 	case, 	and 	Dale agreed 	to
restrictions in the December 2013 parenting plan. 	The May 2014 parenting plan
did not impose new restrictions without notice. 	The court heard testimony from
expert and lay witnesses, and Dale had the opportunity to testify and to cross-
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NO. 71860-6-1/15
examine Kathryn's witnesses on this issue. 	Substantial evidence supports the
court's findings, and those findings support its decision.
Finding of fact 2.3.5. 	regarding 	the 	reasons and 	good faith 	of each 	person
seeking or opposing the relocation:
Because Foster testified that he planned to marry Kathryn whether or not
she moved to Australia, Dale challenges the trial court finding that Kathryn would
be a single mother if she remained in Washington. 	We disagree with Dale.
Substantial evidence supports the trial court finding that Foster would not move
to the 	United States. 	Consequently, the court properly found that even if the
couple 	married, Kathryn would not have 	her husband's 	regular presence or
support in raising their child and Dale and Kathryn's two children if she remained
in Washington.
Dale 	also 	contends 	that 	the 	trial 	court 	failed 	to 	separate 	Kathryn's
relocation considerations from those of the children. 	RCW 26.09.530 prohibits
the court from "admitting] evidence on the issue of whether the person seeking
to relocate the child will forego his or her own relocation if the child's relocation is
not permitted." 	Dale points to Kathryn's statement that "if I'm denied living in
Australia, I could go live with my mom with the children." 	However, Kathryn gave
this hypothetical answer in response to opposing counsel's repeated questions
about her alternatives. 	She did not claim that she would forgo relocation if the
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NO. 71860-6-1/16
court prohibited the children from moving. 	Dale does not show that the trial court
improperly admitted evidence on this issue.
Finding of fact 2.3.6. regarding the age, developmental stage, and needs of the
children, 	and 	the 	likely 	impact the 	relocation 	would 	have 	on 	their physical,
educational, and emotional development, taking into consideration any special
needs of the children:
Dale 	also 	disputes 	the 	court's finding that "[t]he younger child, while
perhaps at a more malleable age, also is dependent on [Kathryn] to provide the
secure and stable routine he 	knows." 	A significant amount of trial testimony
focused on Dale's relationship with K.R., with less testimony describing Dale's
relationship with his son. 	But Dale did not propose separating the children, and
the court appropriately considered the siblings' relationship when deciding the
residential provisions for the 	children.27 	Substantial 	evidence 	supports 	the
court's findings about the needs of both children.
Finding of fact 2.3.8. 	regarding the availability of alternative arrangements to
foster and continue the children's relationship with and access to Dale; Finding of
fact 2.6.1, as to whether a 	residential plan can be made that allows Dale to
maintain a close bond with his children despite their relocation:
Dale argues that "[w]ith the children in Australia, a residential plan cannot
be made allowing [him] to maintain a close bond with them." 	But the parenting
plan provides for at least twice-weekly contact between Dale and the children via
Skype. 	The plan permits Dale to buy K.R. a cell phone to use "at will" to contact
27 RCW 26.09.187(3)(a)(v).
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NO. 71860-6-1/17
him and to buy his son a phone when he turns age 10. 	It provides Dale access
to the children's school and medical records "to the extent possible." 	The plan
specifically 	provides 	for 	Dale's 	visits 	with the 	children 	in Washington 	and
Australia, with travel costs "borne proportionally to income to reduce the burden
on [Dale]." 	As the 	court recognized, "It is inherently unfair to ask [Dale] to
sacrifice his relationship with the children because he cannot afford the cost of
travel to a distant location chosen by [Kathryn]." 	But the court concluded, "The
costs and 	logistical demands of relocation are 	real, but not insurmountable."
Substantial evidence supports the court's finding that Dale may maintain a close
bond with the children despite their relocation.
Finding of fact 2.3.9. regarding the alternatives to relocation and whether it is
feasible and desirable for the other party to relocate:
Dale also disputes the trial court's findings that he did not ask to be the
children's primary residential 	parent and 	that the 	evidence does 	not support
making 	him 	the 	children's 	primary 	residential 	parent. 	Dale 	requested 	a
modification of the parenting plan to "includ[e] a change in the residence in which
the children reside the majority of the time." At trial, however, he did not ask to
be the primary residential parent. 	Even if he had made this request, substantial
evidence in the record supports the court's finding that he should not be the
primary residential parent at this time.
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NO. 71860-6-1/18
Dale makes several other contentions that lack merit. 	He argues that
Kathryn violated the 	relocation statute by failing to give written notice to her
parents. 	But Diane Roberts's testimony at trial in support of relocation shows
that she had notice, and Dale's technical argument fails. 	Dale also argues that
the trial court erred procedurally when it entered a parenting plan in December
2013, after Kathryn had filed 	her notice of intended relocation but before the
2014 relocation trial. 	But if Dale objected to the entry of this parenting plan, his
remedy was to file a timely appeal. 	He did not and may not raise this issue now.
Safeguards To Ensure Washington's Continuing Jurisdiction
Concerned about the costs and consequences of a future modification or
relocation proceeding in Australia, Dale argues that the trial court should have
taken steps to ensure the continuing jurisdiction of Washington courts over this
matter. 	Citing 	two 	California 	cases, 	In 	re Marriage 	of Condon28 	and In 	re
Marriage of Lasich,29 Dale contends that Washington courts should require a
concession 	of 	continuing 	jurisdiction 	and 	a 	substantial 	bond 	in 	cases 	of
international 	relocation. 	Dale 	argues 	that 	a 	bond 	is 	necessary 	to 	ensure
Kathryn's compliance with the parenting plan and to supply Dale with the funds
he would need to litigate any future dispute.
28 62 Cal. App. 4th 533, 73 Cal. Rptr. 2d 33 (1998).
29 99 Cal. App. 4th 702, 121 Cal. Rptr. 2d 356 (2002), rejected on other
grounds by In re Marriage of LaMusga, 32 Cal. 4th 1072, 88 P.3d 81, 12 Cal.
Rptr. 3d 356 (2004).
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NO. 71860-6-1/19
The Washington 	Legislature enacted the 	relocation statute in 2000, 	2
years after the California Court of Appeals decided Condon. 	In the last 14 years,
it has not amended the CRA to 	limit its application to 	relocations within 	U.S.
borders 	or 	to 	impose 	additional 	or 	different 	requirements 	for 	international
relocations. 	We decline Dale's request that we usurp the legislature's authority
to 	modify the 	CRA 	and 	do 	not adopt the 	mandatory 	provisions 	created 	in
Condon.
We 	recognize, 	however, 	the 	additional 	concerns 	that an 	international
relocation 	creates for a 	nonresidential parent. 	While the 	Hague Convention
provides 	that 	where 	a 	child 	has 	been 	wrongfully 	removed 	from 	his 	or 	her
"habitual residence," "the authority concerned shall order the return of the child
forthwith,"30 	the 	Convention's 	provisions 	relating 	to 	a 	nonresidential 	parent's
access 	rights 	do 	not 	use 	such 	mandatory 	language.31 	This 	puts 	the
nonresidential 	parent's 	visitation 	rights 	at some 	risk following 	even 	a 	lawful
relocation.
Here, although the trial court considered all the required relocation factors
and substantial evidence supports the court's findings, it did not incorporate in its
30 Hague Convention, art. 12.
31 Hague Convention, art. 21 ("An application to make arrangements for
organizing 	or 	securing 	the 	effective 	exercise 	of 	rights 	of 	access 	may 	be
presented 	to 	the 	Central Authorities 	of the 	Contracting 	States." 	(emphasis
added)).
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NO. 71860-6-1/20
parenting plan certain stipulations Kathryn made both at trial and 	before this
court at oral argument. 	Kathryn agreed that "the United States will always be the
country of 	habitual 	residence 	of these 	children" for 	purposes of the 	Hague
Convention 	and 	that 	modification 	of 	the 	parenting 	plan 	will occur 	only 	in
Washington or the state where Dale resides. 	She testified that she intends it to
be enforceable in either Washington or Australia and that if she fails to comply,
Dale may file a 	motion for contempt in either jurisdiction. 	At oral argument,
counsel confirmed that Kathryn intends Australia to have the authority to find her
in contempt and to enforce such an order.
According 	to 	expert 	testimony 	at 	trial 	from 	an 	Australian 	family 	law
attorney, Dale and Kathryn can make the Washington parenting plan enforceable
in Australia by registering it "through the regulations that are provided for under
the Family Law Act," making the order "most difficult... to disregard" or modify
absent a significant change of circumstances. 	At oral argument, Kathryn told this
court through 	counsel that she 	has 	registered the current parenting 	plan 	in
Australia. 	In response to our question, 	counsel also confirmed that Kathryn
would 	agree to maintain an agent in Washington for purposes of service of
process.
Although the doctrine of judicial estoppel may prohibit Kathryn from taking
a contrary position in future proceedings in Washington courts, we cannot predict
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NO. 71860-6-1/21
with confidence the 	application 	of this doctrine in foreign 	courts. 	Thus, 	we
conclude 	that 	the 	parenting 	plan 	should 	be 	amended 	to 	include the 	cited
stipulations Kathryn made both at trial and before this court at oral argument.
The 	trial 	court 	record 	does 	not 	affirmatively 	reflect 	the 	trial 	court's
consideration of Dale's bond request. 	Contrary to Condon, we have declined to
rewrite 	the 	CRA 	to 	include 	any 	mandatory 	requirements 	for 	international
relocations. 	But we remand to 	the trial 	court to 	consider the merits of this
request, including the relative burdens and benefits of a bond. 	In its discretion,
the trial court may conduct an evidentiary hearing on this issue.
In this context, we note that Article 22 of the Hague Convention states,
"No security, bond, or deposit, however described, shall be required to guarantee
the payment of costs and expenses in the judicial or administrative proceedings
falling within the scope of this Convention." 	But the Convention does not prohibit
a bond imposed to guarantee performance of plan provisions and proceedings
not falling with the scope of the Hague Convention.
Finally, the trial court should require that the amended parenting plan be
registered with the Australian Family Law Court.
Motion to Strike
Dale filed with this court a motion to strike portions of Kathryn's brief and
for sanctions. 	Dale could have addressed this issue in his reply brief in a few
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NO. 71860-6-1/22
sentences rather than filing a separate motion to strike. 	This course would have
saved time and resources of the parties and the court without diminishing the
quality of the decision-making process. 	We deny the motion.
Attorney Fees
Dale requests an award of attorney fees and costs on appeal. 	He argues
that 	Kathryn 	has 	"the 	superior ability 	to 	pay" 	because she 	has 	"historically
earned" more than Dale. 	Kathryn counters, "[Dale] is not entitled to attorney fees
on appeal; [Kathryn] is."
RCW 26.09.140 provides that "after considering the financial resources of
both parties," the court may order a party to pay a "reasonable amount" of the
costs and attorney fees of the other party. 	When exercising our discretion under
this statute, we consider the arguable merit of the issues on appeal and the
parties' financial resources.32 	A party must timely file a financial declaration for
this court to consider his or her resources.33 	RCW 26.27.511 states that the
court "shall award the prevailing party . . . necessary and reasonable expenses."
Dale filed an affidavit of financial need, but he is not a prevailing party, and his
focus 	on 	Kathryn's 	"superior 	ability 	to 	pay" 	alone 	does 	not 	address 	the
requirements of RCW 26.09.140 or RAP 	18.1 	to award fees. 	Kathryn's one
sentence request without further support or argument does not adequately brief
32 In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d 669 (1997).
33 RAP 18.1(c).
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NO. 71860-6-1/23
this issue. 	A "bald request for attorney fees on 	appeal" with no argument is
insufficient.34 We decline to award appellate costs or attorney fees to either Dale
or Kathryn.
CONCLUSION
We remand to the trial 	court for amendment of the parenting 	plan to
incorporate the 	parties' 	stipulations 	as 	noted 	in this 	opinion 	and 	require 	its
registration with the 	Family Law Court of Australia. 	We also direct that on
remand the court consider the bond issue. 	Because the trial court considered
and 	made 	findings 	on 	the 	factors 	required 	by 	the 	relocation 	statute 	and
substantial evidence supports the court's findings and conclusions, we otherwise
affirm.
JLz^aL^z^A. 	//
WE CONCUR:
%*«-<<~e 	oCsS 	gT^U^ M&	Y«'«~< J
34 Thweatt v. Hommel. 67 Wn. App. 135, 148, 834 P.2d 1058 (1992).
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