Marriage Of: Rachelle Black, Appellant V. Charles Black, Respondent (Majority)

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Filed Washington State Court of Appeals Division Two March 8, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II RACHELLE K. BLACK, No. 46788-7-II Appellant, v. CHARLES W. BLACK, UNPUBLISHED OPINION Respondent. SUTTON, J. — Rachelle Black appeals the trial court’s order and entry of the final parenting plan and decree of dissolution from Charles Black restricting her speech and conduct related to her sexual orientation and religion, designating Charles as the primary residential parent, allocating sole decision making authority to Charles for religious upbringing, education, and daycare, denying her request for spousal maintenance, and ordering her to pay child support. We hold that the trial court erred when it restricted Rachelle’s conduct and speech about religion and sexuality without making any specific findings of harm to the children, and erred when it allocated Charles sole decision-making authority regarding religious upbringing and daycare. Additionally, we hold that the trial court did not err when it designated Charles as the primary residential parent, allocated sole decision-making authority for education to Charles, denied Rachelle spousal maintenance based on Charles’s inability to pay, and required Rachelle to pay child support. Accordingly, we affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion. No. 46788-7-II FACTS Charles and Rachelle Black married in 1994 and have three children from the marriage. Charles and Rachelle raised their children in a conservative Christian home and sent the children to religious-based schools. For the majority of the marriage, Rachelle did not work outside of the home. In December 2011, Rachelle informed Charles that she was a lesbian, and began a romantic relationship with another woman. Rachelle continued to reside in the same home with Charles and the children, although she and Charles occupied separate rooms and rarely interacted. In May 2013, Rachelle filed for divorce. Rachelle and Charles submitted proposed parenting plan orders to the court, each seeking designation as the primary residential parent and sole decision-making authority regarding the children’s education. Rachelle wanted the children to attend public school, while Charles wanted them to remain in their religious-based private schools. Rachelle requested joint decision-making for religious upbringing, but Charles requested sole decision-making. Charles still attended their family church, while Rachelle did not, and she no longer considered homosexuality to be a sin. The trial court appointed a guardian ad litem (GAL) to investigate and report “all issues relating to the development of a parenting plan.” CP at 19. In November 2013, the GAL arrived at the Blacks’ home and discovered that Rachelle and Charles had just told the children the evening before that they were divorcing. The GAL was not able to speak with the oldest child, and spent about an hour total with the younger two children. That was the GAL’s only interview with the children, and she did not attempt to speak with them again. 2 No. 46788-7-II The children started seeing a therapist in early 2014. According to the therapist, the children had some difficulty with the divorce, but they were adjusting. During one counseling session with the therapist, Rachelle told the children she was gay. After Rachelle disclosed that the children had already met her partner, the therapist recommended that Rachelle not allow any further contact between the children and her partner until the GAL issued her recommendations. Rachelle subsequently provided the oldest child with a book to answer any questions that he might have about her sexuality and their faith. She also showed the two oldest children a documentary about a transgendered child because they had asked questions about the meanings of “LGBT”1 and “transgender.” I Verbatim Report of Proceedings (VRP at 161-62). While initially supportive of the information Rachelle provided to the children, the therapist asked her to refrain from having conversations about sexuality outside of therapy. Due to the children being sheltered, naïve, and shut down, the GAL and therapist were concerned that Rachelle might not give the children the time they needed to adjust and cope to the divorce and Rachelle’s sexual orientation. However, the therapist admitted that the children were getting used to the idea that their mother was gay, that the issue did not consume an inordinate amount of time during their therapy sessions, and that she and the children primarily talked about other concerns the children had related to their parents’ divorce. Because she lacked financial resources, Rachelle’s partner would be supporting her financially after the divorce. The GAL and the therapist were concerned that Rachelle lacked a plan for independent financial and residential stability and that she intended to rely on her partner 1 LGBT is an acronym that stands for lesbian, gay, bisexual, and transgender. 3 No. 46788-7-II for support. The trial court shared the GAL’s and the therapist’s concern and acknowledged that Rachelle’s search for full-time employment and/or enrollment in an educational program would affect her ability to parent full-time. I. THE TRIAL COURT’S RULINGS A. Parenting Plan—Residential Placement, Decision-Making, and Restrictions The trial court, in its written ruling, designated Charles as the primary residential parent because he was “clearly the more stable parent in terms of the ability to provide for the needs of these children, both financially as well as emotionally and in maintaining their religious upbringing.” CP at 40. The trial court acknowledged that Rachelle “was a traditional stay-athome mother for the majority of [their] 21 year marriage” and performed the “bulk” of the parenting functions, but found that after December 2011, Charles assumed many of the primary parenting functions when Rachelle was away from the home. CP at 40. The trial court also acknowledged that both parents have “a strong and stable relationship with the children,” that both parents have a “good potential for future performance of parenting functions,” and that both parents were active with the children’s schools and education. CP at 40. With regard to the children and the changes in their family life, the trial court stated, I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality. CP at 40-41. The trial court adopted Charles’s proposed parenting plan, specifically rejecting Charles’s proposed restrictions under RCW 26.09.191, finding “no section .191 limitations,” and adopted 4 No. 46788-7-II the GAL’s proposed restrictions on Rachelle’s residential time with the children. 2 CP at 41. The final parenting plan order incorporated the following restrictions and conditions on Rachelle’s residential time with the children: 7. The children are to have no contact with [Rachelle’s partner] until such time as [the therapist] feels that the children are ready. [The therapist] has the discretion to determine when and/or how contact should occur. 8. Ms. Black is ordered to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles concepts and further that she is prohibited from exposing the children to literature or electronic media; taking them to movies or events; providing them with symbolic clothing or jewelry; or otherwise engaging in conduct that could reasonably be interpreted as being related to those topics unless the discussion, conduct or activity is specifically authorized and approved by [the therapist]. CP at 49. The trial court did not enter any specific findings of fact to support the restrictions. The trial court also awarded Charles sole decision-making authority for religious upbringing, education, and daycare because “both parents are opposed to mutual decision[-]making”3 and have “a recent history of lack of communication, and have expressed very different goals concerning the children’s education and religious education.” CP at 49, 75. B. Property Division, Spousal Maintenance, and Child Support Rachelle received one-half of the marriage’s community property, including one-half of Charles’s $145,135 401(k). The trial court also ordered Charles to refinance the home at a value In her report to the court, the GAL recommended the restrictions on Rachelle’s conduct when exercising her residential time and that Charles should be designated as the primary residential parent. The trial court’s restrictions in the final parenting plan in section 3.13 are identical to those recommended in the GAL’s report. 2 Rachelle testified that Charles had “refused to mediate or negotiate or even speak to me” regarding decisions on where the children would go to school. II VRP at 256. 3 5 No. 46788-7-II of $500,000, pay off the community debt, and divide the remaining proceeds equally with Rachelle. If Charles could not refinance the home, the trial court ordered that Charles list it for sale at a price between $520,000 and $550,000. The home’s mortgage balance was $147,165. The court held that the refinance would “produce the same benefit” to Rachelle as a sale would. CP at 42. The trial court found that, although Rachelle needed maintenance, Charles could not afford to pay and denied Rachelle’s request for an award of maintenance. For the duration of the marriage, Rachelle was a stay-at-home parent and did not have an independent source of income, and intended to rely on her partner for financial support. Charles’s total monthly gross income was $8,159.4 The court intentionally excluded a 2013 bonus when it calculated Charles’s ability to pay Rachelle maintenance. Prior to the divorce, the family lived paycheck to paycheck and sometimes bills would go unpaid because there was not enough money to pay them. Charles calculated his monthly household expenses to be $6,618.57 before any debt payments. His calculation included only $975.11 per month in tuition expenses.5 The trial court calculated his payroll deductions to be $1,877.98 before the payment of any health insurance costs, and Charles was paying about $1,200.00 per month for health insurance. The court also ordered The trial court used Rachelle’s method of calculating Charles’s gross income. His hourly pay of $42.75, multiplied by 40 hours a week and 52 weeks per year. CP at 41. The total income includes his monthly disability payments of $749. 4 5 Tuition Disclosure Declaration. 6 No. 46788-7-II Rachelle to pay the statutory minimum of $50.00 per child or $150.00 per month to Charles for child support. II. APPEAL AND STAY Rachelle appeals the court’s final parenting plan designating Charles as the primary residential parent, allocating sole decision-making authority to Charles for education, religious upbringing, and daycare, and the section .191 restrictions imposed on her residential time; the court’s order for child support; and the court’s denial of spousal maintenance. We stayed enforcement of the parenting plan’s restrictions pending this decision. ANALYSIS Rachelle argues that the trial court erred when it imposed restrictions on her communication and conduct with her children, designated Charles as the primary residential parent, awarded Charles sole decision-making for education, daycare, and religious upbringing, denied her request for spousal maintenance, and ordered her to pay Charles child support. We agree with Rachelle’s claims regarding the imposed restrictions and sole decisionmaking for religious upbringing and daycare, but disagree that the trial court erred when it designated Charles as the primary residential parent, allocated sole decision-making for education, denied her request for spousal maintenance, and ordered her to pay child support. I. STANDARDS OF REVIEW We review a trial court’s rulings on a permanent parenting plan, restrictions in residential time, decision-making allocation, spousal maintenance, and child support for an abuse of 7 No. 46788-7-II discretion.6 In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). An abuse of discretion occurs when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Katare, 175 Wn. 2d at 35. When supported by substantial evidence, we accept the trial court’s findings of fact as verities on appeal. Katare, 175 Wn.2d at 35. Substantial evidence is that which is sufficient to persuade a fair-minded individual of the truth of the matter asserted. Katare, 175 Wn.2d at 35. II. RESTRICTIONS ON SPEECH AND CONDUCT Rachelle argues that the trial court abused its discretion by restricting her conduct and communication with the children related to her sexual orientation, including contact with her partner, and religious views during her residential time. At oral argument, Charles conceded that the imposed restrictions on Rachelle’s speech and conduct were improper and should be stricken from the parenting plan. We agree that the imposed restrictions were improper. A. RCW 26.09.191(3) RCW 26.09.191 sets forth the factors which require or permit the court to place limitations in a parenting plan upon a parent’s involvement with a child. RCW 26.09.191(3)(a-g); Katare, 175 Wn.2d at 36. Under RCW 26.09.191(3), if a parent’s involvement or conduct may have an adverse effect on the child’s best interests, a trial court may preclude or limit any provisions of the parenting plan, if one or more of the following factors exist: (a) A parent's neglect or substantial nonperformance of parenting functions; (b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004; 6 Rachelle does not challenge the trial court’s division of assets and liabilities. 8 No. 46788-7-II (c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions; (d) The absence or substantial impairment of emotional ties between the parent and the child; (e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development; (f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or (g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child. RCW 26.09.191(3)(a-g). The court cannot draw any presumptions from the temporary parenting plan’s provisions, and, when determining whether any RCW 26.09.191 limiting factors exist, the court applies the civil rules of evidence, proof, and procedure. RCW 26.09.191(5-6). Our Supreme Court has held that restrictions on a parent’s conduct “designed to artificially ameliorate changes in a child’s life” are improper. In re Marriage of Wicklund, 84 Wn. App. 763, 771, 932 P.2d 652 (1996). RCW 26.09.191(3) bars the trial court from restricting parental conduct unless the evidence shows that the conduct may have an adverse effect on the child’s best interests. In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). Additionally, the trial court may restrict parental conduct only if it “‘would endanger the child’s physical, mental, or emotional health,’” Wicklund, 84 Wn. App. at 770 (internal quotation marks omitted) (quoting In re Marriage of Cabalquinto II, 43 Wn. App. 518, 519, 718 P.2d 7 (1986)), and must be “‘more than the normal hardships which predictably result from a dissolution of marriage.’” Katare, 175 Wn.2d at 36 (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 55, 940 P.2d 1362 (1997)). Sexual orientation, by itself, is not a sufficient reason to limit the conduct of a parent in the 9 No. 46788-7-II parenting plan. Wicklund, 84 Wn. App. at 770; In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983). In Wicklund, the trial court restricted the children’s gay father from exhibiting or participating in displays of affection with a partner in his children’s presence. Wicklund, 84 Wn. App. at 769-70. During their marriage, the Wicklunds were active members of, and raised their children in, the Jehovah’s Witnesses faith, which prohibits and condemns homosexuality. See Wicklund, 84 Wn. App. at 766-77. The trial court found that, because of the children’s faith and teachings, “under the circumstances . . . the active and outward practice of homosexuality . . . in the presence of his children is not in the children’s best interest.” Wicklund, 84 Wn. App. at 769. The Supreme Court reversed, finding that the trial court lacked any evidence that Wicklund was acting inappropriately in the children’s presence, and that the only justifications for the restrictions were to help the children adjust to the divorce. Wicklund, 84 Wn. App. at 771-72. The trial court can restrict a parent’s conduct under RCW 26.09.191(3)(g) only after “identifying a specific, and fairly severe, harm to the child” and finding that a restriction is in the child’s best interest. Chandola, 180 Wn.2d at 647-48. In Chandola, the trial court found that, “‘the father’s parenting history has had an adverse effect on the child’s best interests pursuant to RCW 26-09-191(3)(g),’” and placed several restrictions on the father’s contact with his child. Chandola, 180 Wn.2d at 640-41. Our Supreme Court held that the trial court abused its discretion because there were no particular findings that the restrictions were necessary to prevent the child’s physical, mental, or emotional harm. See Chandola, 180 Wn.2d at 648. Here, the trial court specifically found that none of the factors in RCW 26.09.191(3)(a-g) existed, stating, “[T]here are no section .191 limitations in this case.” CP at 41. Regardless, the 10 No. 46788-7-II trial court still imposed restrictions, prohibiting Rachelle from engaging her children in conversations or activities “that could reasonably be interpreted” as relating to religion, homosexuality, or “alternative lifestyles” without the express approval of the children’s therapist. CP at 49. The trial court also prohibited Rachelle from allowing the children to have contact with her partner, without the therapist’s approval. The trial court did not state an evidentiary basis that the restricted conduct and communications would have any adverse effect on the children, other than its belief that reconciling Rachelle’s sexuality with their conservative religious upbringing would be “very challenging” for the children. CP at 40. But it is not the trial court’s duty to craft a parenting plan, imposing restrictions, solely on the basis of making the transition easier for a child. Wicklund, 84 Wn. App. at 770-71. Additionally, there is not sufficient evidence in the record to justify the trial court’s restrictions on Rachelle. The GAL was concerned about Rachelle’s ability to respect the children’s development to the divorce and her sexuality, but the therapist testified at trial that the children were adjusting to their parent’s divorce, and that their mother’s sexuality was not the center of Rachelle’s conversations with them. Here, like in Chandola, the trial court failed to identify any specific, severe harm to the children to justify its restrictions. Chandola, 180 Wn.2d at 647-48. Thus, the trial court abused its discretion when it imposed restrictions upon Rachelle’s residential time without any evidence supporting any RCW 26.09.191 restrictions or evidence that any discussions or communications with the children on religion or homosexuality would endanger the child’s physical, mental or emotional health, or was otherwise harmful to the children and would not be in their best interests. 11 No. 46788-7-II B. Constitutional Claims Rachelle argues that the restrictions burden her constitutional right to free speech and the free exercise of religion under the First Amendment and article I, section 5 of our Washington State Constitution. We agree. Article I, section 5 of our constitution protects freedom of speech, prohibiting prior restraints against protected speech but permitting prior restraints against unprotected speech. In re Marriage of Suggs, 152 Wn.2d 74, 80, 93 P.3d 161 (2004). Prior restraints, official restrictions imposed upon speech and expression in advance, carry a heavy presumption of unconstitutionality and are per se unconstitutional under our state constitution, and any restrictions should be specific. CONST. art. I, § 5; Suggs, 152 Wn.2d at 80-81, 83-84 (quoting Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)); See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S. Ct 1239, 43 L. Ed. 2d 448 (1975)). A court order restraining First Amendment rights must further an important or substantial governmental interest and the restriction must be no greater than necessary and essential to the furtherance of that interest. In re Marriage of Olson, 69 Wn. App. 621, 629, 850 P.2d 527 (1993) (quoting U.S. v. O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)). An order that generally forbids certain kinds of speech lacks specificity, can function to chill all speech, and is an unconstitutional prior restraint. See Suggs, 152 Wn.2d at 83-84 (stating that the language of the trial court’s order could function to chill all of the appellant’s speech because it is unclear what can and cannot be said). Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child. See Olson, 69 Wn. App. at 630 (holding that restrictions on “disparaging remarks” were not unconstitutional because defamatory remarks are not protected by 12 No. 46788-7-II the First Amendment); Dickson v. Dickson, 12 Wn. App. 183, 187-90, 529 P.2d 476 (1974) (holding that trial court’s restriction is proper when speech results in actual, tangible harm to children). But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment. Olson, 69 Wn. App. at 630 (stating that even in the context of family law, content-based speech restrictions are presumptively unconstitutional). Here, the trial court made no specific findings of any actual or perceived harm that the children would suffer from the prohibited speech, other than that it would “be very challenging for them to reconcile their religious upbringing” with the changes in their lives concerning the divorce and Rachelle’s sexual orientation. CP at 40-41. The trial court did not restrict Rachelle’s speech to prohibit her from making defamatory statements about Charles, or to prevent her from harming the relationship between Charles and the children. See Olsen, 69 Wn. App at 630. The restrictions in this case are blatantly content-based restrictions prohibiting Rachelle from any speech or communication about religion, homosexuality, or “alternative lifestyles concepts” with her children. CP at 49. Our courts have protected a parent’s right to free exercise of religion in prior restraint cases. See Dickson, 12 Wn. App. at 191 (stating that a constitutional injunction prohibiting former husband “from representing Mrs. Dickson as his wife” did not preclude him from “contending that she is his wife in the eyes of God”). The restrictions function to chill a broad range of Rachelle’s speech around her children, and prevent her from being able to share and speak about her religion with her children. While the best interests of the children is a trial court’s paramount concern under RCW 26.09.187, here there is no indication that Rachelle’s prior speech related to her sexual 13 No. 46788-7-II orientation or her religious views caused harm to the children or disparaged Charles, or would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion. III. RESIDENTIAL PLACEMENT Rachelle argues that the trial court abused its discretion when it designated Charles as the children’s primary residential parent because the trial court (1) misapplied RCW 26.09.187(3), ignoring that she was the primary caregiver and stay-at-home mother, and the court’s findings of fact are not supported by substantial evidence and (2) improperly considered her sexual orientation and favored Charles’s religion. We disagree. A. RCW 26.09.187(3)(a) Factors The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care, and when the “existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents.” RCW 26.09.002. In fashioning a parenting plan, the trial court determines the residential arrangement that will serve the best interests of the child. In re Marriage of Wicklund, 84 Wn. App. at 772 (citing In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993)). While it has broad discretion, a trial court must consider the following factors: (i) The relative strength, nature, and stability of the child’s relationship with each parent; (ii) The agreements of the parties . . . ; (iii) Each parent’s past and potential for future performance of parenting functions . . . , 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 development level of the child; 14 No. 46788-7-II (v) The child’s relationship with siblings and with other significant adults, [and] the child’s involvement . . . [in] school, or other significant activates; (vi) The wishes of the parents and the wishes of [the] child . . . ; and (vii) Each parent’s employment schedule . . . . Factor (i) shall be given the greatest weight. RCW 26.09.187(3)(a). The trial court may consider the religious beliefs of the child. RCW 26.09.184(3). There is no presumption in favor of placement with the primary caregiver. Kovacs, 121 Wn.2d at 800. Evaluating factor (i), the trial court found that both Charles and Rachelle “have a strong and stable relationship with the children.” CP at 40. This factor is given the most weight, and it weighed equally in favor of both parents. The GAL testified that the children “clearly have a good relationship” with both parents and that both parents have strong bonds with the children. I VRP at 28, 77. Both parents were actively involved in their children’s schooling and education, and both had a consistent presence in the children’s lives, Charles as an involved father and Rachelle as a stay-at-home parent. Accordingly, the trial court properly concluded that this factor was equal as to both Rachelle and Charles. We agree with the trial court that the second factor (ii) did not apply because the parties had no prior agreements. Evaluating factor (iii), the trial court found that Rachelle and Charles both have “good potential for future performance of parenting functions” and that Rachelle, as a stay-at-home parent, had performed the bulk of the parenting functions prior to 2011. CP at 40. But it also found that after December 2011 that Charles had taken on a large amount of the parenting functions. Both Charles and Rachelle testified that Rachelle was gone from the home more often, 15 No. 46788-7-II and that Charles had taken on more responsibility for parenting after December 2011. Rachelle argues that the court ignored her history as the children’s primary caregiver and parent. But under Kovacs, there is no presumption in favor of the primary caregiver. 121 Wn.2d at 800. In addition, the trial court found that Rachelle’s eventual educational program or employment after the divorce would affect her ability to be a full-time parent to the children as she had been before. Thus, the trial court considered Rachelle’s role as a stay-at-home mother and primary parent in the past when making its residential placement decision. Evaluating factors (iv) and (v), the trial court found that, because of their sheltered upbringing and emotional development, Charles was best suited to provide for the children financially and emotionally. The court acknowledged the children’s strong emotional bond with both parents. During trial, Rachelle, Charles, the GAL, and the therapist all testified to the fact that Rachelle remained unemployed and resided in the family home after filing for divorce in May 2013. The therapist and the GAL both expressed concerns, which the court noted, that Rachelle was relying on the support of her partner, and did not have a plan for stable residential or financial independence. Further, Charles continued to maintain a strong relationship with Rachelle’s parents, Bruce and Kathy Hall, who were a frequent presence and close to the children, and whose relationship with Rachelle was strained. Rachelle wanted the children to leave their current schools where they each had been since starting school, and enroll in public school. The therapist and the GAL, emphasizing the children’s need for stability, expressed concern at Rachelle’s desire to relocate the children to a new school, because their current schools provided the needed stability. 16 No. 46788-7-II Rachelle also argues that the trial court improperly considered Charles’s religion in its residential placement decision. However, a trial court may consider the child’s religion when fashioning a parenting plan. RCW 26.09.184(3). Here, the trial court’s acknowledgment and consideration of the fact that the children attended religious based schools associated with the family’s church is not improper. We agree with the trial court that factor (vi), the wishes of the parents and child, if sufficiently mature to express them, does not apply. Evaluating factor (vii), the trial court found that the evidence related to this factor weighed in favor of Charles. Charles is employed full-time at Hall Forest Products, which is owned by Rachelle’s parents. While employed full-time, he has the schedule flexibility that allows him to parent the children. Throughout the marriage and divorce proceedings, Rachelle was primarily a stay-at-home parent, and not employed outside of the home. Rachelle had no articulable plans for employment or education, other than to have her partner support her, and any employment or education pursuit would interfere with her ability to remain a full-time stay-at-home parent. While the trial court did not explicitly enumerate each of the RCW 26.09.187(3)(a) factors, there was substantial evidence on the record to support its findings that (i) both Rachelle and Charles had strong relationships and bonds with the children, (ii) they had no prior parenting agreements, (iii) both parents have good potential for future parenting functions, but that Charles had taken on many of the responsibilities since December 2011, (iv) Charles was the parent most able to provide stability, and emotional and financial support to the children, (v) Charles was most able to maintain the other strong relationships in the children’s lives, (vi) none of the children stated their preference to the court, and (vii) Charles’s employment situation was best suited to 17 No. 46788-7-II provide him the flexibility to parent the children consistently. Thus, the trial court did not abuse its discretion in applying the RCW 26.09.187(3)(a) factors in determining residential placement of the children. B. Judicial Bias Rachelle and amici argue that the trial court improperly considered her sexual orientation and demonstrated preference for Charles’s religion when it designated Charles as the primary residential parent and limited and restricted Rachelle’s residential time with her children based on her sexual orientation and religious views.7 There is no evidence in the record to support Rachelle’s or the amici’s arguments that the trial court based its residential placement decision on Rachelle’s sexual orientation or a preference for Charles’s religion. To overcome the presumption that a trial court is fair and free of bias or prejudice, there must be specific facts and evidence establishing the claimed bias. In re Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). Judicial rulings alone almost never constitute valid evidence of bias. In re Davis, 152 Wn.2d at 692. However, despite their arguments that the effect of the trial court’s ruling demonstrates and is proof of bias based on Rachelle’s sexual orientation and religious beliefs, Rachelle and amici give no specific evidence in support of their arguments that the trial court was biased, and we find 7 Br. of Appellant at 28-30, 33; Br. of Amicus Curiae American Civil Liberties Union at 9, 11, 15; Br. of Amici Curiae The Wash. State Psychological Assoc. (WSPA), at 5, 9; Br. of Amici Curiae National Center for Lesbian Rights, at 9. While the trial court designated Charles’ as the primary residential parent, there was no ruling restricting or limiting Rachelle’s amount of residential time with her children for any purpose. 18 No. 46788-7-II nothing in the record or the trial court’s rulings to support their claims. Amici base their generalized arguments on bald accusations of bias absent any evidence, and rely on a myriad of studies and broad generalizations regarding gay and lesbian parents to support their arguments. Because a judicial ruling alone is not valid evidence of bias, this argument fails.8 IV. DECISION-MAKING AUTHORITY Next, Rachelle argues that the trial court abused its discretion when it allocated Charles’s sole decision-making authority over the children’s religious upbringing, daycare, and education. We agree with Rachelle’s claims regarding the allocation of sole decision-making for religious upbringing and daycare, but disagree with her claim regarding allocation of sole decision-making for education. RCW 26.09.187(2) encourages the trial court to allocate mutual decision-making authority unless the parents have come to another agreement, there is a limitation mandated by RCW 26.09.191, when both parents are opposed to mutual decision-making, or one parent is opposed to mutual decision-making and their opposition is reasonable. See RCW 26.09.187(2)(b). When allocating decision-making authority, the parents’ ability and desire to cooperate with one another should be one of the court’s considerations. RCW 26.09.187(2)(c)(iii). WSPA argues that the trial court’s ruling “references Rachelle’s sexual orientation more than a dozen times” in its written decision. Br. of Amici Curiae WSPA, at 8. However, this is incorrect, and while the trial court’s ruling does reference Rachelle’s sexual orientation, it is in the context of providing the factual context of the Blacks’ relationship, and is not a basis of any of the trial court’s decisions. 8 19 No. 46788-7-II A. Religious Upbringing Rachelle argues that the trial court abused its discretion when it awarded Charles sole decision-making authority for the children’s religious upbringing. We agree. In exercising its discretion, a trial court can consider the parties’ religious affiliations in making a decision affecting parental rights. In re Marriage of Jensen-Branch, 78 Wn. App. 482, 490, 899 P.2d 803 (1995). Washington courts have created a separate standard where a trial court’s order regarding decision-making authority restricts the parents’ rights to free exercise of religion. Jensen-Branch, 78 Wn. App. at 490. There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise. Jensen-Branch, 78 Wn. App. at 490-91. The burden on free exercise is only justified by a compelling state interest and using the least restrictive alternative available; the “actual or potential harm” requirement satisfies the “compelling interest” test. Jensen-Branch, 78 Wn. App. at 491. Findings of actual or potential harm must be made with reference to specific evidence and the specific needs of the children involved. Jensen-Branch, l78 Wn. App. at 491-92. The constitutional right to free exercise does not allow sole decision-making, even if the parents are incapable of joint decision-making, “if leaving each parent free to teach the children about religion independently would not cause actual or potential harm to the children.” JensenBranch, 78 Wn. App. at 492 (emphasis in original) (citing Munoz v. Munoz, 79 Wn.2d 810, 815, 489 P.2d 1133 (1971). In Jensen-Branch, the wife believed her husband’s church was a cult and sought sole decision-making for religious upbringing. Jensen-Branch, 78 Wn. App. at 486-87. The parents were incapable of joint decision-making, and the trial court allocated sole decision 20 No. 46788-7-II making to the mother. Jensen-Branch, 78 Wn. App. at 488. The trial court recognized the husband’s right to free exercise, and ordered that the husband could take the children to church with him, but not for the purpose of indoctrination or teaching. Jensen-Branch, 78 Wn. App. at 488. On appeal, Division One of our Court of Appeals reversed and remanded back to the trial court holding that absent a clear and affirmative showing of actual or potential harm the trial court could not restrict the father’s freedom of exercise. Jensen-Branch, 78 Wn. App. at 493-94. The trial court made the following findings regarding Rachelle’s and Charles’s religious practices: 6. The family prior to December 10, 2011, had by choice attended Church for All Nations, a conservative Christian Church. 7. Ms. Black’s parents are elders in the Church for All Nations. 8. Mr. Black still attends the Church for All Nations. 9. Ms. Black no longer attends the Church for All Nations. CP at 73. Rachelle testified at trial that she still remained a Christian, that the only difference between her religious beliefs and those of Charles was that she no longer viewed homosexuality as a sin, and that the children would attend church with Charles during his residential time. While Charles had requested sole decision-making authority for religious upbringing, Rachelle was open to joint decision-making. The trial court did not expressly state its reasons for allocating sole decision-making to Charles in its written opinion, [Charles] is clearly the more stable parent in terms of . . . maintaining their religious upbringing. These children have been taught from the Bible since age 4. I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality. 21 No. 46788-7-II CP at 40-41. Because there were no specific findings by the trial court or evidence presented that joint decision-making would cause an actual or potential harm to the children, the trial court abused its discretion by allocating sole decision-making to Charles regarding the children’s religion.9 B. Daycare Rachelle argues that the trial court abused its discretion when it allocated sole decision- making authority to Charles regarding the children’s daycare. Charles argues that there is no error because the children are not in daycare, and that any error would be harmless. The trial court made no findings under RCW 26.09.187(2) that would require sole decision-making to either Rachelle or Charles. Thus, the trial court abused its discretion when it allocated sole decision-making authority to Charles without making any findings under RCW 26.09.187(2) that sole decisionmaking was necessary. C. Education Rachelle argues that the trial court abused its discretion when it allocated sole decision- making to Charles regarding the children’s education. We disagree. Rachelle also argues that the trial court’s parenting plan restrictions on speech and conduct relating to religion—which we find are an abuse of discretion supra—in conjunction with Charles’s sole decision-making authority, infringe on her constitutional right to free exercise. We agree. Because exercise of religion also includes performance or abstention from physical acts in addition to belief and profession, the government must have a compelling government interest to burden a person’s right to free exercise. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767, 2770, 189 L. Ed. 2d 675 (2014). While a parent’s right to select their children’s religious experiences and opportunities is not absolute, the vast majority of cases restricting a parent’s right to free exercise include cases of parents risking their children’s health and well-being. See e.g., Pfoltzer v. County of Fairfax, 775 F. Supp. 874, 885 (E.D. Va. 1991) (citing to cases where necessary medical care, compulsory school attendance, and surrender of legal custody override a parent’s religious interests). That is not the case here, and the trial court demonstrated no compelling governmental interest to burden Rachelle’s free exercise of religion. 9 22 No. 46788-7-II Rachelle acknowledged that she and Charles opposed mutual decision-making authority for education, and they both requested sole decision-making authority regarding education in their proposed parenting plans submitted to the court. Furthermore, the court found that Rachelle and Charles had a “recent history of lack of communication, and have expressed very different goals concerning the children’s education.” CP at 75. Rachelle wanted the children enrolled in public school, while Charles wanted them to remain in the private school community were the children had been enrolled for the entirety of their school years. Thus, under RCW 26.09.187(2), the trial court did not abuse its discretion when it allocated sole educational decision-making authority to Charles because Rachelle and Charles were against mutual decision-making on this issue and their ability to cooperate was minimal because they drastically differed in their desires for the children’s education. V. SPOUSAL MAINTENANCE Rachelle argues that the trial court abused its discretion when it failed to properly apply the statutory factors under RCW 26.09.090 and denied her request for an award of spousal maintenance based on Charles’s inability to pay. We disagree. The trial court has discretion when awarding spousal maintenance, and the party challenging a spousal maintenance award must demonstrate that the trial court manifestly abused its discretion. In re Marriage of Marzetta, 129 Wn. App. 607, 624, 120 P.3d 75 (2005), abrogated on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007). While it does have broad discretion, the trial court’s award must be just in light of the statutory factors under RCW 26.09.090. In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994). 23 No. 46788-7-II When determining maintenance, some of the non-exclusive factors the trial court must consider are (1) the financial resources of the party seeking maintenance, (2) the party’s ability to independently meet his or her needs, (3) the time necessary for the party seeking maintenance to find employment, (4) the duration of the marriage, (5) the age, physical and emotional condition, and financial obligations of the spouse seeking maintenance, and (6) the ability of the spouse from whom maintenance is sought to meet his or her needs and financial obligations. RCW 26.09.090; Marzetta, 129 Wn. App. at 624. Consideration of the first factor, the parties’ financial resources, includes apportioned community property. See RCW 26.09.090(1)(a). The trial court is governed strongly by the need of one spouse and the ability of the other spouse to pay. In re Marriage of Foley, 84 Wn. App. 839, 845-46, 930 P.2d 929 (1997). A. RCW 26.09.090(1)(a-e) Rachelle argues that trial court abused its discretion when it denied her request for maintenance because the proper application of the statutory factors under RCW 26.09.090 weigh in favor of maintenance. Charles agrees that Rachelle is a spouse that would typically need maintenance, but the other factors under RCW 26.09.090 are irrelevant because he cannot afford to pay maintenance. We agree with Charles. The trial court awarded Rachelle one-half of the marriage’s community property, including Charles’s $145,135 retirement savings. The trial also ordered Charles to refinance the home at $500,000 and to pay Rachelle one-half of the proceeds after paying $192,500 in community debts, including the home’s outstanding mortgage. Rachelle was entitled to approximately $154,000 from the proceeds of the home’s refinance. 24 No. 46788-7-II Rachelle and Charles were married for more than 20 years, and she was a stay-at-home parent without an independent source of income.10 While Rachelle had not enrolled or attempted to enroll in an educational program and had not obtained employment outside of the home since filing for dissolution, the trial court acknowledged that Rachelle “appears to be very intelligent and should have no difficulty in finding employment” in the future. CP at 41; see also RCW 26.09.090(1)(b)(d). The trial court, taking these facts and considering the statutory factors under RCW 26.09.090(1)(a-e), acknowledged that Rachelle needs spousal maintenance. However, an award of spousal maintenance is not a matter of right, Luckey, 73 Wn. App at 209, and the court also found that Charles did not have the ability to pay, as discussed below. See RCW 26.09.090(1)(f). B. Ability to Pay, RCW 26.09.090(1)(f) Rachelle argues that the trial court erred because it overstated Charles’s expenses and underestimated his income and that no substantial evidence supports its finding that Charles cannot pay maintenance. We disagree. The trial court denied Rachelle’s request for maintenance, finding that she had a need but that Charles was not able to pay. The court found that Charles’s gross monthly income was $8,159, but that his costs exhausted his monthly income. At trial, Rachelle testified that the couple lived Rachelle received one-half of the community property, including Charles’s 401(k), and one-half of the proceeds from the sale or refinance of their home after costs and payment of the marriage’s community debt. See RCW 26.09.090(1)(a). Rachelle does not challenge any of the property division on appeal. 10 25 No. 46788-7-II paycheck to paycheck and that there are a couple of bills that she has not been able to pay because there have not been enough funds.11 The trial court calculated Charles’s payroll deductions to be $1,877.98 before the payment of any health insurance costs, and Charles was paying about $1,200.00 per month for health insurance. Even if we were to take Rachelle’s lower estimate of $1,700.00 in payroll deductions, Charles would still have a monthly net-negative income.12 Therefore, the trial court did not abuse its discretion when it denied Rachelle’s request for an award of maintenance because it determined that Charles would not be able to pay maintenance. VI. CHILD SUPPORT13 Next, Rachelle argues that because the trial court erred when it designated Charles as the primary residential parent, its award of child support to Charles was in error also. However, because the trial court did not err when it designated Charles as the primary residential parent, there was no error in the award of child support. CONCLUSION We hold that the trial court abused its discretion when it restricted Rachelle’s conduct and speech about religion and sexuality without any specific findings of harm to the children, and 11 Rachelle does not dispute Charles’s monthly household expense calculations of $6,618.57. Based on the trial court’s gross income calculations, Charles’s stated monthly household expenses, and the payroll deductions in the final order of child support, Charles’s net monthly income would be -$1,537.55. Using Rachelle’s proposed payroll deduction, Charles’s net monthly income would be -$1,358.57. 12 13 The trial court imputed a minimum wage income to Rachelle and ordered her to pay the statutory minimum of $50 per child in child support. RCW 26.19.065(2)(a). 26 No. 46788-7-II allocated Charles sole decision-making authority regarding religious upbringing and daycare. Additionally, we hold that the trial court did not abuse its discretion when it (1) designated Charles as the primary residential parent, (2) allocated sole decision-making authority for education to Charles, (3) denied Rachelle spousal maintenance based on Charles’s inability to pay, and (4) required Rachelle to pay child support. Accordingly, we affirm the trial court’s (1) residential placement of the children with Charles, (2) allocation of sole decision-making for education, (3) denial of spousal maintenance, and (4) order requiring Rachelle to pay child support. But we reverse and strike the restrictions in the parenting plan prohibiting Rachelle from discussing her sexual orientation and religion with her children, and reverse the allocation of sole decision-making authority for the children’s religious upbringing and daycare. We remand for further proceedings consistent with this opinion. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. SUTTON, J. We concur: WORSWICK, J. MAXA, J. 27

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