In re the Marriage of Zigler and Sidwell
This case is a good example of how our state law on modification of parenting plans works. While Washington’s laws in the area of parenting plans are not perfect, we have caught the eye of the rest of the nation with some of our ground breaking cases, such as In re Parentage of L.B. that set forth de facto parentage rights for non-biological parents. Although the details of de facto parentage are still being ironed out in our Supreme Court (oral arguments for In re Marriage of Corbin were heard in early April in regards to the rights of a step-parent), these types of decisions make me proud to be a Washington resident.
The current case, In re the Marriage of Zigler and Sidwell is yet one more of those cases where it would just seem logical that the lower court’s decision was correct. But following the statutory guidelines in family law matters does not mean that a logical result will always be reached.
Kirk Sidwell and Lisa Zigler were marred in 1999, they had a son, Blake, in 2000, and were divorced in 2002. The parenting plan entered with the court made Lisa’s home Blake’s primary residence. The parties agreed to modify the parenting plan in April 2004 and then in December 2004, Kirk filed a motion to modify the agreed parenting plan. The reasons Kirk gave for the modification were:
- Incidents of domestic violence between Ms. Zigler and her ex-husband, Tim Briggs, that occurred before 2002;
- Incidents of domestic violence between Ms. Zigler and Mr. Sidwell that apparently occurred between 2002 and 2004;
- An assault by Ms. Zigler on her daughter, Darci Briggs, in September 2004;
- Substance abuse by Ms. Zigler’s son, Cory Briggs, in 2004; and
- Possession of a gun at school by Cory Briggs in 2003.
Kirk’s motion to modify was denied as adequate cause had not been established. Again in March 2006, Kirk and Lisa agreed to modify the parenting plan with some minor adjustments. And then the real fun began! In April 2006, a real brawl took place in Lisa’s home. The altercation involved Lisa, her current husband and two of Lisa’s children. There were punches and biting and an arrest for assault. Kirk again motioned the court to modify the parenting allowing for Blake to reside with him. This time Kirk was successful and the court granted him the modification. Lisa then appealed claiming that the trial judge wrongly considered evidence of family problems from previous to the last entry of a parenting plan: March 2006.
After a determination of adequate cause, a court may modify the parenting plan if it finds: (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child’s health, (3) modification is in the child’s best interest, and (4) the change will be more helpful than harmful to the child. RCW 26.09.260(1), (2)(c). The primary issue on appeal was whether the trial court properly based its decision on "facts that have arisen since the prior . . . plan or that were unknown to the court at the time of the prior . . . plan." RCW 26.09.260(1).
The trial court had transferred Blake’s primary residence to Kirk’s home because of a history of domestic violence at Lisa’s home. This includes ALL of the history, not just the Smack Down that occurred in April 2006. Lisa argued that the statute only allowed the court to consider evidence that had arisen since the last parenting plan had been entered or that the court had not known at the time of entry of that parenting plan. Since Kirk had filed a motion in 2004 alerting the court to the history of domestic violence at that time, Lisa argued that the court did have knowledge of the problems at the entry of the parenting plan in 2006.
However, the Court of Appeals did not agree with Lisa’s view. The statute allows the court to consider "facts that have arisen since the prior [parenting] plan" and "that were unknown to the court at the time of the prior [parenting] plan." So the reasoning is that Kirk’s motion to modify in 2004 is not a “parenting plan”; it is a motion. So the court could consider as “facts that have arisen” all the facts clear back to 2002, when the original plan was entered. Even though there were two agreed orders entered in between there, the court reasoned that the facts involved in those agreed orders were not known to the trial judge.
Lisa also tried to argue that the record did not show a history of domestic violence. Right. She also argued that there was no evidence to support a finding that her home was detrimental to Blake’s health. The court didn’t buy this one either. And finally she argued that the law required that there must be direct evidence of an effect on the minor child from the detriment. The Court of Appeals did not find any statutory requirement for this and stated that even if there was a requirement there was more than enough evidence to infer that the “this nine-year-old boy was likely affected by the extreme dysfunction, including violence…”
This one feels right to me.