Michael Faris, Respondent V. Chiharu Faris, Appellant

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IN
THE
COURT
OF
APPEALS
OF THE
STATE OF WASHINGTON
In
the
Matter
of
the
Marriage
of
	)
No.
75978-7-I
MICHAEL
ANTHONY FARIS
	)
)
	DIVISION
ONE
Respondent,
	)
)
	UNPUBLISHED
OPINION
and
)
CHIHARU NAKANO
EARlS,
	)
)
Appellant.
	)
	FILED:
February
20,
2018
APPELWICK,
J.
—
The
trial
court purported
to clarify
a
parenting
plan.
	The
mother 	claims
	that 	the
	action
	was
	an 	improper
	modification,
	rather than 	a
clarification.
	We
affirm.
FACTS
Michael
Fans
and Chiharu
Fans were married. 	They had a
child
together.
Then, they dissolved their marriage.
Michael
	1
had a history
of
excessive marijuana use, mental health problems,
and erratic behavior,
including
obsessing
over the
child
being sexually
abused.
To
address
this, section 3.10
in
the parenting plan allowed Chiharu
to
suspend
his
visitation rights:
If
at any point,
the father
is
acting erratically or
there
is
objective
evidence
of
decompensation
or
elevated paranoia, the mother may
temporarily suspend visitation with
the father and request that he
1
We use first names for clarity. 	We intend no disrespect.

No. 75978-7-1/2
obtain 	a 	mental 	health 	evaluation 	from 	a 	neutral 	medical
provider/psychiatrist with collateral contract with the mother. 	Make
up time shall be given for any time missed (capped at 8 overnights)
and residential time shall resume when the father has a letter from
the 	doctor 	approving 	him 	for 	overnights. 	Mother 	shall 	file
affidavit/declaration 	with 	the 	court 	setting 	forth 	grounds 	for
interrupting father’s residential time within 3 business days of the
incident.
The parenting plan was entered on July 27, 2015.
Chiharu 	invoked 	section 	3.10 	one week after the 	parenting 	plan 	was
entered. She alleged that Michael was again showing signs that he was obsessing
over their daughter being sexually abused.
Michael sought to regain his visitation rights, and underwent a psychological
examination. 	But, Chiharu did not reinstate his visitation, because she did not
believe that the evaluation was sufficient.
Michael moved for enforcement and 	clarification of the parenting 	plan.
Specifically, he asked that the trial court reinstate his time with his child, award
make up time, 	and 	clarify that 	he 	had 	satisfied 	the 	psychological evaluation
requirement.
On August 26, 2016, over one year after Michael’s visitation had been
suspended, the trial court issued an order in Michael’s favor.
	2 	That preliminary
order provided that a final order be entered at a later date. 	And, the accompanying
2 A commissioner had previously ruled on Michael’s motion. 	Both parties
moved for revision. 	The trial court’s order was on the parties’ respective motions
for revision of the commissioner’s order.
2

No. 75978-7-113
oral ruling stated that section 3.10 had been used by Chiharu in a way that the trial
court had not intended:
But I do think that that paragraph was used in a way that was
not the intent of this Court. 	I’m a little concerned that it was taken up
so quickly, one week after, when we were dealing with -- I didn’t see
anything 	in 	here 	where 	there 	was 	an 	abrupt 	change 	of
circumstances. 	But nevertheless, there should be a way, in terms of
intervening, when there is troubling contact by the father. 	I agree,
there should be a way of intervening. But I think that this way of
intervening was too broad.
And I think, in the Court’s view, at the time we were doing that,
if there was some event or occurrence or situation where Dad was
kind of -- disturbing conduct, you know, and something that would
cause somebody to be uneasy, that that would be treated, and that
we would go back to.
I don’t know what happened with it regarding acting erratically,
but I am surprised that, right within a week or so after we’re through
trial, that this is revoked and had the consequences that it did. I think
that the eight days make-up wasn’t with the idea in mind that it was
something that would be addressed very quickly. It was kind of a
transitory condition or something like that that was happening.
The final written order entered on October 20 stated,
The parenting Plan is clarified in the following way:
o 	If the mother feels that the father is exhibiting decompensation
in a way that would be against the best interests of the child,
Mother is to bring a motion before the Family Law Motions
Calendar to address the issue and the court can determine if
it is prudent to suspend unsupervised visits for the child.
o 	The motion must be supported by evidence brought by the
mother.
3

No. 75978-7-1/4
o 	The Family Law Motions Calendar will, to the best of their
ability, craft a remedy that will serve the aim of reinstating the
Parenting 	Plan 	upon 	adequate 	assurances 	of 	restored
stability of the father.
o 	The father’s treating therapists must provide quarterly reports
to the Wife and Husband shall sign a release for the same.
The reports should provide treatment records that may redact
any notes that are not relevant as to the mother, Chiharu
Fans, the daughter, . . . and that are not related to or relevant
to any perseveration on actions or behavior of the daughter.
Chiharu appeals.
DISCUSSION
Chiharu argues that the trial court improperly modified the parenting plan
under the guise of a clarification.
	3 	Both parties concede that if the trial court’s
change to the parenting plan was a modification, it was invalid.
“Generally, a trial court’s rulings dealing with the provisions of a parenting
plan are reviewed for abuse of discretion.”
	4 	In re Marriage of Christel, 101 Wn.
Michael argues that this appeal should be dismissed as untimely, because
the notice of appeal was not filed within 30 days of the final order below. 	Michael
contends that the August 26 order, and the September 21 denial of reconsideration
of that order, constituted the final judgment. We disagree. Notably, the September
21 order that denied Chiharu’s motion for reconsideration stated that “[t]he jflJ
order required by the 8/26/16 handwritten order. . . to be presented by 8/30/1 6,
shall be submitted, in the same manner as a motion without oral argument, within
10 days of this order.” 	(Emphasis added.) 	That order had not been submitted
prior to the motion for reconsideration. 	The order being appealed, which contains
the specific clarification at issue, was signed by the trial court on October 18, and
filed on October 20. 	Chiharu filed her notice of appeal on October 27. This appeal
was timely.
Chiharu argues that the trial court’s review of a parenting plan clarification
is de novo, but review of a modification is for abuse of discretion. She cites Stokes
v. Polley, 145 Wn.2d 341, 346, 37 P.3d 1211(2001). 	But, there the court reviewed
de novo a summary iudgment order that was based purely on interpretation of a
dissolution decree. 	Id. 	It did not squarely address the validity of a clarification to
4

No. 7 5978-7-1/5
App. 	13, 20-21, 1 	P.3d 600 (2000). 	And, if the trial court was modifying the
parenting plan under the guise of a clarification, that would amount to an abuse of
discretion because it would be an error of law. 	State v. Tobin, 161 Wn.2d 517,
523, 166 P.3d 1167 (2007).
A “clarification” of a parenting plan is merely a definition of the rights that
have already been 	given 	and those rights 	may 	be completely spelled 	out if
necessary. 	In re Marriage of Holmes, 128 Wn. App. 727, 734-35, 117 P.3d 370
(2005). 	A court may clarify a decree by defining the parties’ respective rights and
obligations, if the parties cannot agree on the meaning of a particular provision.
Christel, 101 Wn. App. at 22. 	Permissible clarifications include “explaining the
provisions of the existing plan,” and “filling in procedural details” of the existing
plan. 	See jat23.
By contrast, a modification occurs when a party’s rights are either extended
beyond 	or reduced from those originally intended, 	or where those 	rights are
reduced, giving the party less rights than those that he or she originally received.
Rivard v. Rivard, 75 Wn.2d 415,418, 451 P.2d 677 (1969).
Chiharu relies on Christel to conclude the court modified the decree here.
In Christel, the original parenting plan required the parents to consult with each
other and jointly make a decision regarding where to enroll the child in school. 	101
Wn. App. at 1617. 	But, the trial court revised the school enrollment provision to
a parenting plan. See k1. Christel is the clearest authority as to the proper standard
of review.
5

No. 75978-7-116
require the parties to submit to dispute resolution. 	j4 at 19-20. And, it stated that
failure to adhere to the dispute resolution provisions constituted an outright waiver
of the right to seek a change in the child’s school enrollment. 	ki. 	The original
parenting plan also required each parent to live within a “reasonable travel area,”
which it defined as within “approximately” one-half hour of the other.
	j. at 16-17.
But, the trial court also altered this provision so that if the mother moved beyond
the reasonable travel area, the residential schedule would be flipped.
	j at 20.
The mother and father would assume the other’s prior residential schedule pending
completion of a dispute resolution process. 	Id.
The mother appealed, arguing that the trial court modified the parenting
plan, rather than merely clarifying it. 	Id. at 22. 	This court agreed:
This language goes beyond explaining the provisions of the
existing 	parenting 	plan. 	The 	language 	goes 	beyond 	filling 	in
procedural details. 	The order on its face imposes new limits on the
rights of the parents. 	It is not a clarification of the existing parenting
plan.
ki. at 23. 	The trial court’s order was therefore vacated. 	ki. at 24.
In contrast to the modification found in Christel, Rivard is an example of a
clarification. 	75 Wn.2d 419. 	There, the divorce decree provided the father with
“reasonable visitation rights.”
	5 	Id. 	The parties disagreed as to what amounted to
Rivard was decided prior to adoption of the 1973 dissolution of marriage
act, ch. 26.09 RCW. 	See Childers v. Childers, 89 Wn.2d 592, 595, 575 P.2d 201
(1978) (referring to the 1973 adoption of the dissolution act). 	Prior to that act, the
primary statute governing divorce in Washington was the Divorce Act of 1949.
20 Scorr. J. HORNSTEIN, WASHINGTON PRACTIcE: FAMILY AND COMMUNITY PROPERTY
LAw § 43:2, at 688 (2d ed. 2015).
6

No. 75978-7-1/7
reasonable visitation rights. 	ki. 	The trial court ordered that the father would be
entitled to visitation on alternate weekends and one weekday evening per week.
ki. This, according to our Supreme Court, merely clarified the procedural gaps left
by the “reasonable visitation rights” ambiguity. 	See j
Only the court has the authority to modify an order. 	Parents do not. Parents
nonetheless always have the ability to disregard a court order. 	Doing so, they risk
being held in contempt of court.	6 	To avoid such a risk, a parent would normally
seek a temporary order from the court before disregarding it. 	Here, it is apparent
the trial court appreciated that Michael’s mental health could at times pose a risk
to his daughter. 	It is also apparent the trial court wanted Chiharu to have an
alternative procedure for immediate, temporary suspension of Michael’s contact
with 	his 	daughter. 	The 	procedure 	required 	documentation 	of the 	basis 	for
suspending contact within three business days of doing so. 	It also required make
up of residential time. 	This procedure, 	if properly followed, 	likely would have
insulated Chiharu from the risk of a contempt finding. 	But, it did not confer on
Chiharu the right to change the substantive parenting plan.
The trial court was persuaded the alternative procedure was not used as
intended and, in the order challenged here, removed the alternative procedure.
The new order required Chiharu to resort to the family law motions calendar to
6 “In any kind of case, a party who disregards a court order may be subject
to contempt sanctions.” 	Bellevue Sch. Dist. v. E.S., 148 Wn. App. 205, 213, 199
P.3d 1010 (2009), rev’d on other grounds, 171 Wn.2d 695, 257 P.3d 570 (2011).
7

No. 75978-7-1/8
suspend the residential schedule. 	In effect, the trial court returned to the default
procedures of the statute authorizing temporary orders, 	RCW 26.09.060, 	and
applicable civil rules.
The alternative procedure may well have been an easier, quicker and less
expensive means of intervention, but that is a description of the ancillary benefits
of the procedure, not of substantive rights. 	The elimination of the alternative
procedure was not a change in the substantive rights of the parties. 	This change
was a clarification, not a modification of the parenting plan. 	The trial court did not
abuse its discretion in ordering this clarification.
We affirm.
WE CONCUR:
8