Parenting Of A.c. Misty Curry, Respondent V. Chandler Clough, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON?
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In the Matter of the Parenting of
A.C.
MISTY RAE CURRY,
Respondent,
v.
CHANDLER HAAKON CLOUGH,
Appellant. 	FILED: August 8, 2016
No. 73897-6-I
DIVISION ONE
UNPUBLISHED OPINION
Appelwick, J. — Clough challenges the parenting plan that provides for
the care of his daughter. He primarily argues that the evidence does not support
the court's finding of domestic violence that underlies restrictions imposed on his
residential time. 	Because substantial evidence supports the court's finding of a
history of acts of domestic violence and the other challenges Clough raises are
without merit, the court did not abuse its discretion by imposing restrictions in the
parenting plan. 	We affirm.
FACTS
Chandler Clough and Misty Curry are the parents of a daughter, A.C, who
was two years old at the time of trial. 	When A.C. was born, Curry lived in

No. 73897-6-1/2
Washington and Clough lived in California. 	Just after A.C.'s second birthday,
Cough relocated to Washington in order to be more involved in his daughter's
life.
Curry filed a petition to establish a parenting plan and child support order.
The court held a four day hearing. 	The parties represented themselves. 	The trial
court heard the testimony of both parties and eight witnesses, who were primarily
family members.
At the conclusion of the hearing, the court entered a parenting plan that
included restrictions on Clough's residential time after finding both a history of
acts of domestic violence and an abusive use of conflict. 	The plan provides for
Clough's residential time to be supervised initially and for gradually increasing
residential 	time 	with 	Clough 	conditioned 	upon 	his 	compliance 	with 	various
requirements. 	In addition, the parenting plan requires Clough to undergo a
mental 	health 	assessment 	and 	to 	obtain 	recommended 	treatment, 	and 	to
participate in domestic violence treatment. 	Clough appeals.
RESTRICTIONS IN PARENTING PLAN
The restrictions imposed by the court in the parenting plan are based on
the following finding as to Clough:
A 	history 	of 	acts 	of domestic 	violence as 	defined 	in 	RCW
26.50.010(1) or an assault or sexual assault which causes grievous
bodily harm or the fear of such harm.
Clough contends that the evidence does not demonstrate a "pattern of conduct
constituting domestic violence."

No. 73897-6-1/3
A trial court has broad discretion when crafting a parenting plan, and we
review its decision for an abuse of discretion. 	In re Marriage of Caven. 136
Wn.2d 800, 806, 966 P.2d 1247 (1998). 	This court defers to the "trial judge's
advantage 	in having 	the 	witnesses 	before 	him or 	her, 	which 	is 	particularly
important in proceedings affecting 	the 	parent and 	child 	relationship." 	In re
Welfare of A.W.. 182 Wn.2d 689, 711, 344 P.3d 1186 (2015). 	We do "not decide
the credibility of witnesses or weigh the evidence" on appeal, 	jd.
When fashioning a parenting plan, the court's discretion must be guided
by 	several 	statutory 	provisions, 	including 	RCW 	26.09.191, 	which 	sets forth
factors that require or permit limitations on a parent's involvement with the child.
In re Marriage of Katare. 	175 Wn.2d 23, 35-36, 283 P.3d 546 (2012). 	RCW
26.09.191(1) and 	(2) are mandatory provisions that require the trial court to
restrict a parent's time with his or her child and prohibit mutual decision-making if
the court finds 	that a 	parent has engaged 	in a 	"history of acts of domestic
violence" or an 	assault that "causes grievous bodily harm or the fear of such
harm." "Domestic violence," as defined in RCW 26.50.010(3), means
(a) Physical harm, bodily injury, assault, or the infliction of fear of
imminent physical harm, bodily injury or assault, between family or
household members; (b) sexual assault of one family or household
member by another; or (c) stalking as defined in RCW 9A.46.110 of
one family or household member by another family or household
member.
Although "a history of acts of domestic violence" is not specifically defined,
legislative history indicates that the phrase "was intended to exclude 'isolated, de
minimus incidents which could technically be defined as domestic violence.'" 	jn

No. 73897-6-1/4
re Marriage of C.M.C., 87 Wn. App. 84, 88, 940 P.2d 669 (1997) (quoting 1987
Proposed Parenting Act, Replacing the Concept of Child Custody. Commentary
and Text 29 	(1987)), 	affd sub nom.. 	Caven, 	136 Wn.2d 	800. 	And, "[mjere
accusations, without proof, are not sufficient to invoke the restrictions under the
statute." Caven. 136 Wn.2d at 809.
We will uphold the trial court's findings 	if substantial evidence supports
them. 	In re the Marriage of McDole. 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).
Substantial evidence consists of "evidence sufficient to persuade a fair-minded
person of the truth of the matter asserted." 	In re Marriage of Chandola, 180
Wn.2d 632, 642, 327 P.3d 644 (2014). 	More specifically, "[sjubstantial evidence
exists so long as a rational trier of fact could find the necessary facts were shown
by a preponderance of the evidence." A.W.. 182 Wn.2d at 711.
Clough maintains that there was no evidence of domestic violence that
took 	place after he moved 	to Washington.1 	While 	he concedes that Curry
provided sworn testimony that he engaged in domestic violence both before and
after the 	child 	was 	born, Clough points out that his testimony contradicted
Curry's. 	He also notes that Curry did 	not present police reports or medical
treatment records to substantiate her claims. 	Clough suggests that the court was
influenced by gender bias and ignored evidence of Curry's role in the conflict.
However, 	the 	court expressly found that 	Curry's testimony about the
domestic violence was credible. 	Curry described her relationship with Clough as
1 The record is unclear as to exactly when Clough moved to Washington,
but it appears to have been within a year of the July 2015 trial.
4

No. 73897-6-1/5
"abusive." 	Curry testified about a specific violent incident that occurred when she
and Clough lived together in California and she was pregnant with A.C. 	Curry
said that while she and Clough were fighting, he put his hand over her mouth and
then grabbed her cell phone and held it away from her. 	In response, she put her
forearm on Clough's chest and face. 	He then placed his hand on her neck and
choked her. 	Curry began to cry. 	Clough yelled at her for a few minutes, and
then left for the rest of the night. 	The next day, Curry packed her belongings so
she could return to Washington. 	Clough disconnected the battery of Curry's
vehicle so she could not leave, forcing her to call the police for assistance.
Curry also testified that during a visit with Clough in California when A.C.
was about a year old, she and Clough had a "physical altercation" and fought
over the baby. 	Clough forcefully took A.C. from Curry during an argument and
went into the bathroom, purportedly to calm A.C. down. 	Curry tried to take A.C.
back from him, and then propped her foot in front of the bathroom door to prevent
Clough from closing the door. 	Curry said that Clough "ended up kicking [her]"
and shut the door. 	Curry testified that on the following night during the same
visit, she and Clough had another argument and Clough threw a pizza on the bed
where she was sitting with A.C. 	After these incidents, Curry said she no longer
"felt safe" taking A.C. to California to visit Clough.
Curry's mother's testified about 	an 	incident at 	some 	point during the
parties' relationship when Clough blocked her car on a four lane road. 	Clough
approached 	Curry's mother's 	car and 	grabbed 	Curry's arm. 	When Curry's
mother demanded that he release her or she would call the police, Clough yelled

No. 73897-6-1/6
at Curry and her mother in an offensive manner. 	The court described Clough's
behavior as generally controlling, aggressive, and manipulative. 	The court also
observed 	that 	Clough's 	reactions 	were 	disproportionately 	angry, 	particularly
when confronted with matters beyond his control, such as the presence of a new
boyfriend in Curry's household.
Clough's 	arguments 	rely on 	his 	own subjective 	interpretation 	of the
evidence 	and 	assessments 	of witness 	credibility. 	But, 	"[t]he fact 	that the
evidence may be subject to different interpretations does not authorize this court
to substitute its findings for those of the trial court." 	Peter L Redburn. Inc. v.
Alaska Airlines, Inc., 20 Wn. App. 315, 318, 579 P.2d 1354 (1978). As this court
does 	not reweigh evidence or review witness 	credibility, 	his arguments are
unpersuasive.
Alternatively, Clough suggests that the limitations in the parenting plan are
unwarranted, because they were not contemplated or proposed by the parties.
Curry sought only a minor adjustment of the midweek residential schedule and
did not request limitations based on domestic violence or for any other reason.
Therefore, 	Clough contends that the court was not authorized to restrict his
residential time. No authority supports this argument. 	Although the parents may
propose parenting plan provisions, the court is bound only by the provisions of
the Parenting Act of 1987, ch. 26.09 RCW, including the objectives stated in
RCW 29.09.184 and the considerations set forth in RCW 29.09.187.
Finally, Clough asserts that he was entitled to a jury determination by clear
and convincing evidence on the issue of domestic violence. 	But, trial by jury is
6

No. 73897-6-1/7
dispensed 	with 	in 	proceedings 	under 	chapter 	26.09 	RCW. 	See 	RCW
26.09.010(1). 	And, the standard of proof in a civil case is preponderance of the
evidence. 	See In re Mental Illness of Levias. 83 Wn.2d 253, 255, 517 P.2d 588
(1973), overruled on other grounds bv In re McLaughlin. 100 Wn.2d 832, 676
P.2d 444 (1984) ("Traditionally, unless otherwise provided by statute or case law,
the standard of proof used in the trial of civil matters has been a preponderance
of the evidence."). 	Citing Santoskv v. Kramer, 455 U.S. 745, 756, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982), Clough argues that because the parenting plan
suspended his residential time until he met certain conditions, the evidentiary
standard should be the same as that required to terminate parental rights. 	But, a
temporary suspension of residential time is not commensurate with a termination
of parental rights. 	Clough offers no meaningful argument or authority to support
the position that this type of parenting plan provision raises constitutional issues.
We affirm.
WE CONCUR:
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