Rhea J. Rolfe, Appellant V. Jonathon M. Philpott, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
JONATHAN M. PHILPOTT,
Respondent,
and
LINDSEY MAY WRIGHT
(fka philpott),+
Respondent,
RHEA J. ROLFE,
Appellant.
NO. 72228-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	May 11, 2015
Leach, J. — Rhea Rolfe appeals a trial court's CR 11 sanction against her.
She 	challenges 	the 	trial 	court's 	determination 	that 	she 	filed 	an 	amended
objection to relocation and request for modification of a parenting plan in bad
faith. 	Because the trial court based its decision on an erroneous view of the law,
the trial court abused its discretion when it imposed the sanction. We reverse.
FACTS
Jonathan 	Philpott and 	Lindsey Wright 	lived with 	their two 	children 	in
Florida when they separated in December 2011. 	Wright moved with the children
to Colorado to be near extended family and then in January 2012 to Washington.
t Ms. Wright was the respondent in the trial court action. 	She is not a
party to the appeal.

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In May 2012, 	Philpott planned to visit the children and sent a text to
Wright's new partner, 	a former friend to both Wright and 	Philpott. 	Because
Wright and her partner interpreted the text as threatening, the visit did not occur.
The text also caused Wright to file a petition for protective order in Washington,
alleging sexual violence. 	Washington issued a warrant for Philpott's arrest for
cyberstalking and telephone harassment. 	A Washington court later entered a
five-year 	protective order preventing 	Philpott from 	contacting the children or
Wright. 	Philpott did not appeal the order.
Philpott petitioned for divorce in Florida. 	After a two-day trial, the Florida
court granted the divorce, 	designating 	Philpott the primary residential parent.
The Florida court did not find Wright to be credible, believing she had lied to
Washington authorities to obtain the protective order. 	It considered the arrest
warrant in Washington unjustified. 	Among other factors, it found that Philpott had
a stable job and that the children would attend A-rated schools in Florida. 	The
parenting plan required Philpott to give advance notice of an intent to relocate
more than 50 miles away.
In June 2013, the children moved to Florida to live with Philpott. 	Philpott
quit his job shortly afterward and then lost his subsequent job. 	In early August,
he moved with the children to Colorado without providing notice to Wright except
for asking their daughter to tell her.

NO. 72228-0-1 / 3
On August 29, 2013, Wright filed a petition for modification of the Florida
parenting plan in Washington.1 	In her petition, she alleged that Philpott relocated
the children without notifying her and prevented her from accessing the children,
constituting a 	substantial change in circumstances. 	In response to Wright's
motion 	for 	temporary 	orders, 	Philpott 	argued 	that 	the 	case 	was 	a 	major
modification case requiring an adequate cause hearing. 	A court commissioner
determined 	at 	an 	October 	17, 	2013, 	hearing 	on 	temporary 	orders 	that 	an
adequate cause hearing was required and continued the hearing to October 31,
2013, requiring either party to file a motion for adequate cause based on the
statutory factors 	or 	relocation 	issues. 	Philpott filed a 	response 	to 	Wright's
petition 	for 	modification 	the 	next 	day. 	Wright 	moved 	for 	revision 	of 	the
commissioner's order. 	She also moved for 	leave to 	amend 	her petition for
modification to 	request relief under the child 	relocation 	act, 	RCW 26.09.403
through 26.09.560. 	Wright scheduled this motion for November 1, 2013, before
Judge Robinson, without oral argument.
Philpott filed a 	motion for a determination of no adequate cause. 	On
October 	31, 	2013, 	the 	commissioner 	heard 	arguments 	on 	temporary 	order
requests and adequate cause and entered a temporary order placing the children
1 Washington has jurisdiction because the children resided in Washington
prior to moving to Florida, resided in Florida for less than six months, and then
moved 	to 	Colorado 	with 	Philpott. 	Wright 	still 	lives 	in Washington. 	RCW
26.27.201(1)(a); RCW 26.27.211(1 )(b); RCW 26.27.221(2).
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NO. 72228-0-1 / 4
with Wright. The commissioner did not rule on adequate cause because Wright's
motion to revise was pending before the court.
On December 10, 2013, Judge Robinson denied Wright's motion to permit
filing of an amended petition without prejudice, stating, "Ms. [Wright] may renew
her motion to amend after her [adequate cause] hearing."
After hearing argument on December 13, 2013, Judge Robinson entered
an order finding 	that "adequate cause for hearing the 	petition 	has not been
established" and denying Wright's original petition for modification. 	The court
ordered the children to return to Colorado and awarded $5,000 in attorney fees to
Philpott based on Wright's intransigence. 	It also granted Wright's motion to file
an amended petition to object to the relocation. 	Wright then filed her amended
objection to relocation and petition for modification with the trial court. 	In her
amended petition she requested a change in the children's primary residence.
The court transferred the case from 	Judge Palmer Robinson to Judge
Ronald Kessler, effective January 13, 2014.
On 	April 	15, 	2014, 	Philpott 	pleaded 	guilty 	to 	the 	cyberstalking
misdemeanor against Wright and her partner, and the court entered a judgment
against him, placing him on probation for 24 months and preventing Philpott from
contacting either victim.

NO. 72228-0-1 / 5
At 	trial 	before 	Judge 	Kessler, 	Philpott 	argued 	that 	the 	court 	lacked
authority to change the primary residence of the children while Wright contended
that the child relocation act grants courts this authority in a relocation proceeding.
Wright argued that new grounds for modification had arisen, namely, Philpott's
guilty plea to 	cyberstalking, 	particularly 	since the 	Florida 	court had 	believed
Philpott's innocence. 	Judge Kessler limited the issue before the court to "strictly
a relocation," stating that the children would either stay in Colorado or return to
Florida.
After considering the relocation factors in RCW 26.09.520, Judge Kessler
ordered relocation and a limited modification of the parenting plan. 	He concluded
that Wright did not need to establish adequate cause before the court considered
her petition for modification, but the law permitted modifications only to the extent
necessary to accommodate the relocation. 	He modified the parenting plan to
require 	that 	all 	communications 	go 	through 	Philpott's 	parents 	and 	Wright's
partner, to require that Philpott allow the children to talk privately on the phone,
and to prohibit either party from recording phone calls.
In its oral decision, the trial court imposed CR 11 sanctions against Rolfe,
holding Rolfe and Wright jointly liable for Philpott's attorney fees. 	The court's
final judgment against Rolfe and Wright awarded Philpott $27,738.56 in attorney
fees.

NO. 72228-0-1 / 6
Rolfe appeals.
STANDARD OF REVIEW
This court reviews a trial court's imposition of CR 11 sanctions for abuse
of discretion.2 	A trial 	court 	abuses 	its 	discretion 	if its 	order 	is 	manifestly
unreasonable or based on untenable grounds or an erroneous view of the law.3
ANALYSIS
This 	case 	presents 	one 	primary 	issue: 	did 	the 	trial 	court abuse 	its
discretion in awarding a judgment against Rolfe under CR 11?
Attorneys 	and 	parties who 	sign 	and 	file a 	pleading, 	motion, 	or legal
memorandum to the court must comply with CR 11 requirements. 	These include
that the pleading is well grounded in fact and warranted by existing law and that it
was 	not 	brought to 	harass, 	cause 	unnecessary delay, 	or 	increase 	costs 	in
litigation.4 The rule's purpose is to deter baseless filings and curb abuses of the
judicial system but not to chill enthusiasm or creativity in pursuing factual or legal
theories.5 	CR 11 requires that a pleading have a factual and legal basis. 	When
a court finds either is missing, the court must also find that the pleading's author
failed to conduct a reasonable inquiry into the pleading's factual and legal basis.6
2 Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d
299, 338-39, 858 P.2d 1054 (1993).
3 Fisons, 122Wn.2dat339.
4CR 11.
5 Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099(1992).
6 Bryant, 119 Wn.2d at 220.
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NO. 72228-0-1 / 7
In its oral ruling, the trial court gave several reasons for imposing CR 11
sanctions. 	It first found that Wright filed her amended objection to relocation and
petition for modification without leave of the court. When Rolfe rose to clarify, the
court said, 	"Sit down. 	I'm ruling." 	The trial court also concluded that "the
objection was not well grounded in fact and was not warranted by existing law or
a good faith argument" to change or establish new law, stating that the law for
relocation 	only 	permits 	modification 	of a 	parenting 	plan 	to 	accommodate 	a
relocation if one is granted. 	The trial court found that Rolfe filed the objection
with the intent "to harass and cause needless increase in the cost of litigation."
Finally, the trial court concluded that Judge Robinson's finding of no adequate
cause for Wright's initial petition for modification of the parenting plan foreclosed
a 	request 	for 	modification 	as 	part 	of 	Wright's 	objection 	to 	relocation 	and
concluded that she argued her position on the issue in bad faith. 	At the end of
the trial court's oral ruling, Judge Kessler stated that the parties may not reargue
the issues he had decided.
Rolfe 	challenges several findings 	and 	conclusions 	related 	to 	the trial
court's CR 11 sanctions against her. 	We review each in turn to determine if the
trial court abused its discretion in sanctioning Rolfe.
Rolfe challenges the trial court's finding that she failed to obtain leave of
court to file the amended objection to relocation and petition for modification.
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NO. 72228-0-1 / 8
Judge 	Robinson's 	order 	finding 	that 	Wright 	had 	failed 	to 	establish
adequate cause for a hearing on her modification petition stated, "Court allows
mother to amend her petition to allege objection to relocation." 	Apparently, as
discussed 	later 	in 	this 	opinion, 	Judge 	Kessler 	appears 	to 	have 	failed 	to
appreciate the legal significance of Judge Robinson's order.
Rolfe next challenges the trial court's conclusion that the child relocation
act does not permit a parent objecting to a relocation to include with the objection
a 	request for a 	major modification of a 	parenting plan without demonstrating
adequate cause.
RCW 26.09.260(6) governs a request for modification made as part of an
objection to a petition for relocation:
The court may order adjustments to the residential aspects of a
parenting 	plan 	pursuant to 	a 	proceeding to 	permit or 	restrain a
relocation of the child. 	The person objecting to the relocation of the
child 	or 	the 	relocating 	person's 	proposed 	revised 	residential
schedule may file a petition to modify the parenting plan, including
a change of the residence in which the child resides the majority of
the time, 	without a 	showing 	of adequate cause other than 	the
proposed relocation itself. 	A hearing to determine adequate cause
for modification shall not be required so long 	as the request for
relocation of the child is being pursued. 	In making a determination
of a modification pursuant to relocation of the child, the court shall
first determine whether to permit or restrain the relocation of the
child 	using 	the 	procedures 	and 	standards 	provided 	in 	RCW
26.09.405 through 26.09.560. 	Following that determination, the
court 	shall 	determine 	what 	modification 	pursuant 	to 	relocation
should be made, if any, to the parenting plan or custody order or
visitation order.

NO. 72228-0-1 / 9
The plain language of this statute provides the legal authority for Wright to
include in her relocation objection a request for a major modification, including a
change in primary residence. 	In In re Marriage of Raskob,7 we recently held that
under RCW 26.09.260(6) a trial court need not consider if a substantial change in
circumstances occurred, other than the relocation itself, and need not consider
the 	factors 	contained 	in 	RCW 	26.09.260(2). 	We 	concluded 	that the 	plain
language of "RCW 26.09.260(6), 	an 	exception to the 	requirements of RCW
26.09.260(1), allows a trial court to make a 'major' modification to a parenting
plan, 	including 	an 	adjustment 	to 	the 	residential 	schedule 	'pursuant 	to 	a
proceeding to permit or restrain a relocation of the child.'"8 	And we held that
where a trial court made a modification under an objection to relocation, the trial
court properly considered if that modification was in the best interests of the
child.9
Rolfe cites In re Marriage of McDevitt10 to show that even after a ruling
that a 	party lacked 	adequate cause for a 	hearing on 	a 	petition to 	modify a
parenting 	plan, 	that 	party 	may 	request 	the 	same 	relief 	in 	an 	objection 	to
relocation. 	In 	McDevitt, 	a 	father 	unsuccessfully 	petitioned 	for 	a 	minor
modification to the parenting plan, a commissioner denied his petition without
7 183 Wn. App. 503, 513, 334 P.3d 30 (2014).
8 Raskob, 183 Wn. App. at 513 (quoting RCW 26.09.260(6)).
9 Raskob, 183 Wn. App. at 515.
10 181 Wn. App. 765, 768, 771, 326 P.3d 865, review denied, 181 Wn.2d
1018(2014).
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NO. 72228-0-1/10
prejudice, and the father filed an amended minor modification request.11 	The
mother then filed 	a 	notice of intent to 	relocate 	her children from 	Hawaii to
Colorado. 	The commissioner found the relocation request but not the father's
amended modification request merited a hearing.12 In response to the relocation
request, the father filed a proposed parenting plan allowing him one three-night
weekend every other month and 	one-half of the children's school vacations,
including summer break.13 	This far exceeded the permitted scope of a minor
modification under the statute.14 	Division Three affirmed the trial court's decision
to adopt the father's parenting plan over the mother's objection. 	It held that the
trial 	court 	decided 	the 	case 	solely 	on 	the 	basis 	of 	relocation 	under 	RCW
26.09.260(6) 	and 	that 	the 	language 	in 	that 	statute 	"clearly 	states 	that 	the
relocation 	petition 	itself is a 	basis for 	modifying a 	parenting 	plan [and] also
expressly permits consideration of new parenting plans as a result of a relocation
request."15
Philpott 	claims 	neither 	Raskob 	nor 	McDevitt 	applies 	because 	neither
involves a situation where the court had just found a failure to show adequate
cause. 	But McDevitt's facts are analogous to this case, and Philpott cites no
authority contrary to Raskob and McDevitt. 	He asserts that a trial court should
11 McDevitt. 181 Wn. App. at 767.
12 McDevitt, 181 Wn. App. at 767.
13 McDevitt, 181 Wn. App. at 767.
14 RCW 26.09.260(5).
15 McDevitt, 181 Wn. App. at 771.
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NO. 72228-0-1 /11
apply RCW 26.09.260(2) to RCW 26.09.260(6) and require a court to retain the
existing residential schedule unless it is harmful to the child. 	But subsection (2)
clearly 	references 	the 	standards enumerated 	in subsection 	(1) that excepts
subsection (6) from its provisions.
Further, 	Rolfe, on behalf of Wright, 	pointed to facts occurring after the
Florida proceedings to show that a change in primary custody was in the best
interests of Wright's children. 	Rolfe specifically cited Philpott's relocation of the
children without warning to Wright, 	not providing Wright access to them, 	not
including Wright in decision-making, and Philpott's guilty plea to cyberstalking.
Each of these issues could weigh on a best interest of the child analysis for the
purpose of a request for modification under the objection to relocation.
Philpott also argues that Wright waived her ability to object to a relocation
because Wright failed to file an 	objection to relocation with the Florida court
where the parenting plan had not yet been filed in Washington. 	But the Uniform
Child 	Custody 	Jurisdiction 	and 	Enforcement Act, 	ch. 	26.27 	RCW, 	provided
Washington jurisdiction because neither the children nor Philpott lived in Florida
after Philpott relocated them, the children resided in Florida for less than six
months, 	and Wright lived in Washington.16 	Thus, 	the act allowed Wright to
register the parenting plan and file her request for modification in Washington.
16 RCW 26.27.201 (1)(a); RCW 26.27.211(1 )(b); RCW 26.27.221(2).
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NO. 72228-0-1/12
Philpott fails to cite any authority requiring this court to find that Wright waived
the right to file her objection to relocation.
Philpott argues that the principle of res judicata prevents the trial court
from determining that adequate cause does not exist and then allowing a major
modification under the relocation statute. As a threshold requirement to show res
judicata bars a claim, the party asserting res judicata must show a final judgment
on the merits in a prior suit.17 	But res judicata does not apply where a trial court
"'plainly reserve[s] from adjudication'" certain issues.18 	Here, Judge Robinson
denied adequate cause but granted Wright's motion to amend, thus reserving the
issue.
Philpott also argues that where Wright did not except or assign error to the
denial of adequate cause with respect to a 	major modification, that decision
became the law of the case.19 	As we have explained, Wright did not need to
establish adequate cause under RCW 26.09.260(6).
Because 	Rolfe 	made arguments 	supported 	by 	law and 	grounded 	her
argument in facts based on the record, she did not file the objection to relocation
for the improper purpose to harass and cause needless increase in the cost of
17 Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108
(2004).
18 Cumminqs v. Guardianship Servs. of Seattle, 128 Wn. App. 742, 754,
110 P.3d 796 (2005) (quoting Case v. Knight, 129 Wash. 570, 574, 225 P. 645
(1924)).
19 See Cresap v. Pac. Inland Navigation Co., 2 Wn. App. 548, 556-57, 469
P.2d 950, affd, 78 Wn.2d 563, 478 P.2d 223 (1970).
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NO. 72228-0-1/13
litigation, and the trial court abused its discretion when it sanctioned her for this
purpose.
Rolfe finally challenges the trial court's determination that she, on behalf of
Wright, filed the objection to 	relocation 	in bad faith 	as a 	means to 	reargue
modification. 	The 	trial 	court 	concluded 	that 	after 	Judge 	Robinson 	found
adequate cause did not exist for modification to the parenting plan, Wright could
not argue for modification in good faith. 	He concluded that Wright did not care if
Philpott lived 	in 	Florida 	or 	Colorado with 	his 	children 	but that 	her 	purpose
involved only reversing the Florida court's decision to make Philpott the primary
residential parent.
But Raskob and McDevitt support Rolfe's legal argument, and under the
best interest of the child standard, Wright presented facts supporting her request
to change the residential schedule. 	Thus, we hold that the trial court abused its
discretion when it found that Rolfe acted in bad faith.
Because the court based its judgment on an erroneous view of the law, we
conclude that CR 11 sanctions were improper and reverse the award of attorney
fees and judgment against Rolfe.
While we do not need to reach Rolfe's argument that the court denied her
an opportunity to be heard when it precluded further argument after issuing CR
11 	sanctions, 	due process requirements under CR 11 	require that the court
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NO. 72228-0-1 /14
provide notice to the offending party and an opportunity to be heard.20 Where the
trial court announces CR 11 sanctions without providing notice or an opportunity
for an offending party to respond, it fails to provide adequate due process.
CONCLUSION
Because the trial court based its CR 	11 sanctions against Rolfe on an
erroneous view of the law, it abused its discretion. 	We reverse the trial court's
finding of a CR 11 violation and the judgment against Rolfe and deny Philpott's
request for attorney fees.
WE CONCUR:
LMtL 	RXuVcLiU,
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20 See Bryant, 119 Wn.2d at 224. 	o 	~
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