                                                                       FILED
                                                                    April 21, 2016
                                                             In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

In the Matter of the Parenting and Support    )         No. 31365-4-111
of                                            )
                                              )
D.W.L.                                        )
                                              )
                      Child,                  )
                                              )
JAMIE STILLMAN,                               )         UNPUBLISHED OPINION
                                              )
                      Respondent,             )
                                              )
                and                           )
                                              )
DOUGLAS C. LEE,                               )
                                              )
                      Appellant.              )

          LAWRENCE-BERREY, A.CJ. - Douglas Lee appeals the trial court's orders setting

child support and requiring him to pay part of Jamie Stillman's attorney fees. He argues

that the trial court erred when it refused to consider his 2010 and 2011 federal tax returns

submitted after trial. He also argues Ms. Stillman's intransigence precludes the partial

attorney fee award. We disagree, award Ms. Stillman her attorney fees on appeal, and

affirm.
No. 31365-4-111
In re Parenting ofD. W.L.


                                FACTS AND PROCEDURE

       Mr. Lee and Ms. Stillman are the parents of D.L., who was born in June 2006.

Prior to and after the pregnancy, the couple lived apart-Mr. Lee in Los Angeles, and Ms.

Stillman in Spokane. The couple ended their relationship in either 2007 or 2008. In

October 2010, Mr. Lee returned to Spokane and began to work as a journeyman lineman

in November 2010. Ms. Stillman worked as a licensed practical nurse and took classes

toward her associate' s degree in nursing.

       A.     Proposed parenting plans and declarations

       On December 10, 2010, Ms. Stillman filed a petition pursuant to Washington's

Uniform Parentage Act, chapter 26.26 RCW, to establish child support and a parenting

plan for D.L. Ms. Stillman included a proposed parenting plan for D.L. that provided for

supervised visitation with Mr. Lee but sought to restrict contact based on factors set forth

in RCW 26.09.191. Mr. Lee responded through counsel and asked the trial court to deny

Ms. Stillman's petition. Ms. Stillman retained Bryan Geissler as counsel. Through

counsel, Ms. Stillman filed an amended proposed parenting plan that listed additional

bases for restricting contact, filed a declaration in support of her proposed restrictions,

and sent Mr. Lee discovery questions that requested Mr. Lee's tax returns, W-2s, and pay

stubs to verify his income.



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No. 31365-4-III
In re Parenting ofD. WL.


       On April 4, 2011, Mr. Lee filed a declaration contesting most of the facts in Ms.

Stillman's declaration. Mr. Lee also filed a proposed parenting plan, which proposed

Wednesday and Sunday visits. Mr. Lee moved the trial court to approve his parenting

plan and noted a hearing for April 27. Mr. Lee never responded to Ms. Stillman's

discovery requests.

       Ms. Stillman filed a response declaration contesting facts in Mr. Lee's declaration.

Ms. Stillman also asked for all visits between D.L. and Mr. Lee to initially occur at a

therapist's office. Ms. Stillman's mother, brother, and friend also filed declarations

contesting facts in Mr. Lee's declaration. Mr. Lee filed a reply declaration contesting

many of those facts.

       B.     The court commissioner's visitation order and motions relating thereto

       On April 27, 2011, the court commissioner signed a temporary order adopting Mr.

Lee's proposed parenting plan, which was conditioned on several weeks of successful

supervised visitation. The commissioner ordered the first two visits between Mr. Lee and

D.L. to occur with a family counselor, and the next two visits to occur at Fulcrum, a

family-oriented dispute resolution facility. The court ordered the two family counselor

visits to be spread out over two weeks, with one visit per week, and both Fulcrum visits to

occur the third week. If the therapists did not identify any problems, then regular


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No. 31365-4-111
In re Parenting of D. W.L.


visitation would start on the fourth week and Mr. Lee's proposed parenting plan would be

adopted as a temporary order.

       Immediately after the commissioner entered the order, Mr. Lee's attorney arranged

a visitation with the therapist the next day, April 28, at 6:00 p.m. That night, Mr. Lee's

attorney sent Ms. Stillman's attorney a text message about the scheduled visit, and Mr.

Lee personally called Ms. Stillman the next morning. Neither Ms. Stillman nor her

attorney responded. On April 28, Mr. Lee moved to compel compliance with the

visitation order and to shorten time so the matter could be heard that day. At the

expedited hearing, the parties acknowledged they had different understandings of what

the court meant when it ruled the first visit was to occur "within a week." Clerk's Papers

(CP) at 94. Ms. Stillman's attorney assured the court the first visit would occur inside the

seven-day period following its April 27 order. The commissioner denied Mr. Lee's

motion without prejudice.

       After the hearing, Ms. Stillman's attorney called the therapist to set up visits. Mr.

Lee's attorney also called the therapist and set up visits on May 3 and May 9, and e-

mailed these times to Ms. Stillman's attorney. That same day, on April 28, Mr. Lee's

attorney noted another expedited hearing for May 3 "in case [Ms. Stillman was]

recalcitrant," and told Ms. Stillman's attorney he would strike the hearing once Ms.


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No. 31365-4-III
In re Parenting ofD. W.L.


Stillman confirmed she would bring D.L. to the May 3 visit. CP at 120. On the morning

of May 3, Mr. Lee's attorney still had not heard from Ms. Stillman, so he obtained an ex

parte order requiring Ms. Stillman to bring D.L. to the visitations on May 3 and May 9.

Ms. Stillman brought D.L. to both visits, and both went well.

       On May 4, Mr. Lee's attorney e-mailed Ms. Stillman's attorney and asked if the

Fulcrum visits could occur the week of May 16. Ms. Stillman's attorney did not respond

to the e-mail. On May 11, Mr. Lee obtained an ex parte order scheduling a hearing on the

matter for May 12. Also on May 11, Ms. Stillman's attorney's office called Fulcrum and

scheduled visits for May 18 and May 20. On May 12, Ms. Stillman's attorney sent a letter

to Mr. Lee's attorney in which he described the visits his office scheduled, stated Ms.

Stillman would transport D.L. to the visits, and agreed to begin the regular visitation

schedule the following week. Mr. Lee struck the May 12 hearing. The Fulcrum visits

occurred on May 18 and May 20. After then, visits occurred regularly.

       On June 8, 2011, Bryan Geissler withdrew as counsel for Ms. Stillman. In April

2012, Ms. Stillman, prose, and Mr. Lee entered into an agreed parenting plan, which

provided that D.L. would spend the third weekend of each month with Mr. Lee.




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No. 31365-4-111
In re Parenting ofD. WL.


        C.      Pretrial discovery motion

        On March 15, 2012, the trial court held a status conference and set the case for

trial on September 10, 2012. In May 2012, Mr. Lee sent Ms. Stillman blank financial

declaration forms and child support worksheets and asked her to complete them. Ms.

Stillman filed the completed worksheets and copies of her 2009, 2010, and 2011 tax

returns with the court, but did not return the financial declaration. On August 20, Mr. Lee

sent Ms. Stillman a draft of the trial management joint report and asked Ms. Stillman to

return it. Ms. Stillman retained Ellen Hendrick as counsel on August 28, 2012. At this

point, Mr. Lee still had not responded to Ms. Stillman's early discovery questions that

sought tax returns, W-2's, and pay stubs to verify his income.

       Mr. Lee filed his proposed child support worksheets, his 2011 W-2, and one pay

stub from March 2012. Mr. Lee stated he had not filed tax returns in three years, but had

hired an accountant to prepare his returns. Ms. Stillman told Mr. Lee that the one

W-2 and one pay stub were insufficient proof of his income, and filed motions to continue

the trial and to extend the discovery cut-off date so she could subpoena additional

financial information. Ms. Stillman set a hearing for September 6, less than one week

before trial.




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No. 31365-4-III
In re Parenting ofD. WL.


       In an e-mail, Mr. Lee threatened sanctions if Ms. Stillman pursued her discovery

motions without the requisite CR 26(i) conference. Mr. Lee filed a response and

requested that the case proceed to trial and declared that Ms. Stillman had not participated

in the CR 26(i) conference. Mr. Lee then e-mailed Ms. Stillman his 2012 pay stubs and

filed them all under seal. On September 4, Ms. Stillman replied to Mr. Lee's e-mail with

the following:

       In reviewing the pay statements you sent, it is apparent that not all were
       provided. However, I believe I have enough to calculate his gross and net
       monthly incomes. I will strike the hearing set for the 6th.

CP at 518.

       D.        Trial

       The court held a bench trial on September 10, 2012. The sole issues were

determination of the appropriate child support obligation and attorney fees. In his

opening, Mr. Lee asked the trial court to hold each party responsible for their own

attorney fees, arguing that Ms. Stillman's intransigence required multiple trips to court to

enforce the temporary visitation order. Mr. Lee testified he had to file two expedited

motions and threaten a third one to get visits to occur. Ms. Stillman denied that she

resisted the commissioner's temporary visitation order, but acknowledged it was

necessary to go to court to get visitations to occur. In closing, Mr. Lee argued:



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No. 31365-4-111
In re Parenting ofD. WL.


       [W]e do not ask for any attorney's fees for any past intransigence. We do
       hope that the Court will not hold Mr. Lee responsible for any, given the
       obvious [sic] of the court file showing the costs that he had to undertake to
       get these visits moving ....

Report of Proceedings (RP) (Sept. 10-11, 2012) at 158.

       On the issue of child support, Mr. Lee testified that he knew he needed to provide

his tax returns for 2010 and 2011 to verify his income. Mr. Lee acknowledged that at the

time of trial, he had not filed tax returns for 2009, 2010, or 2011. After the noon recess,

Mr. Lee's attorney provided Ms. Stillman with Mr. Lee's W-2s from 2009 and 2010,

stating that he had "misunderstood Ms. Hendrick last week that she ha[ d] enough to go

on, and when the W-2s came in the end of last week, I didn't provide those; now I did."

RP (Sept. 10-11, 2012) at 56. The W-2s indicated amounts for federal and state income

tax withholdings. The 2009 and 2010 W-2s were admitted at trial, and Mr. Lee filed an

amended child support worksheet based on these two W-2s. In closing, Ms. Stillman

acknowledged that Mr. Lee's W-2s did show his tax withholdings. However, Ms.

Stillman argued that the trial court should not give Mr. Lee any credit for taxes paid

because those withholdings did not necessarily reflect final tax liability and are

insufficient under RCW 26.19 .071 (2). 1


       1
         RCW 26.19.071(2) provides in relevant part: "Verification of income. Tax
returns for the preceding two years and current paystubs shall be provided to verify

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No. 31365-4-111
In re Parenting ofD. W.L.


       The trial court used Mr. Lee's W-2 from 2011 to calculate his gross annual income

to be $94,118 and monthly gross income to be $7,843. To determine Mr. Lee's net

monthly income, the trial court subtracted $96.94 for mandatory union dues and

instructed counsel to deduct Mr. Lee's Federal Insurance Contributions Act taxes when

preparing their worksheets.

       On the issue of attorney fees, the trial court conducted a "need versus ability to

pay" analysis. The court found that Mr. Lee was living with his parents, and while he

was assisting his ailing father, this living arrangement saved Mr. Lee a significant amount

of money. The trial court found that Ms. Stillman needed her attorney fees paid, and that

it would take a long time before Ms. Stillman would have the resources to pay. The trial

court found that Ms. Stillman was responsible for the $1,500.00 she had initially paid her

attorney, and ordered Mr. Lee to pay the $3,075.88 balance of Ms. Stillman's attorney

fees. In its September 11 oral ruling, the trial court explained why Mr. Lee was not

responsible for $1,500 of Ms. Stillman's attorney fees: "[I]t did take quite a degree of

motion work to [resolve the visitation issue.] It does not appear to have been absolutely

necessary, given prior court orders. For that reason, mom will need to be responsible for

[the initial] $1,500 [retainer for] Ms. Hendrick." RP (Sept. 10-11, 2012) at 173-74.


income and deductions."

                                             9
No. 31365-4-III
In re Parenting ofD. WL.


       E.     Posttrial motions for reconsideration

       On September 26, 2012, Mr. Lee filed his 2011 federal and Idaho tax returns and a

declaration from his payroll administrator explaining his 2012 payroll deductions. Mr.

Lee moved the court to admit his tax returns and his payroll administrator's declaration,

pointing out that the only disagreement between the parties' proposed child support

worksheets was whether Mr. Lee could deduct his federal and state income taxes from his

gross monthly income. Ms. Stillman moved to strike the tax returns and declaration from

the record and noted a hearing for October 24.

       On October 5, 2012, Mr. Lee filed his first posttrial motion in which he asked the

trial court to clarify its September 11 oral rulings, to amend its oral findings after trial

pursuant to CR 52, and to reconsider its decision under CR 59(a)(4) due to newly

discovered evidence. While Mr. Lee's motion did not explicitly characterize Ms.

Hendrick's September 4, 2012, e-mail as a "settlement agreement," Mr. Lee generally

argued that he detrimentally relied on Ms. Hendrick's e-mail, and the trial court should

accordingly deduct his tax expenses from his gross income. This motion did not ask the

trial court to reconsider its prior rulings regarding attorney fees.

       On October 16, 2012, Mr. Lee filed his 2010 federal tax return.




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No. 31365-4-111
In re Parenting ofD. WL.


       On October 24, the court held a hearing to enter final orders from the trial and to

address Mr. Lee's posttrial motion. For the first time, Mr. Lee argued that Ms. Stillman's

September 2012 e-mail constituted an agreement that she would calculate Mr. Lee's net

income based on the state and federal deductions reflected in the 2012 pay stubs, and also

argued that the court sanctioned Mr. Lee for his late disclosures by excluding his income

taxes when it calculated his net income. The trial court denied Mr. Lee's motion for

reconsideration. In denying his motion, the court rejected the argument that the 2010 and

2011 tax returns were newly discovered evidence, and instead described them as "newly

created" evidence. RP (Oct. 24, 2012) at 21. In addition, the trial court explained why it

did not allow the tax deductions shown on the pay stubs admitted at trial:

       And certainly no federal or state income tax netting should be part of [the
       calculation] in light of the evidence at trial that there was no filings.
              Mr. Lee should not be able to take advantage of some deduction that
       he didn't, in fact, engage through his own financial contributionsPl

RP (Oct. 24, 2012) at 22.

       The trial court awarded Ms. Stillman $1,843.40 in attorney fees for the posttrial

motions, based on the financial circumstances of the parties. In its written order


       2
        The pay stubs show that state and federal taxes were deducted from Mr. Lee's
wages and paid to the government. But until final tax returns are prepared and filed, it is
not possible to know to what extent these deductions are refunded. For this reason, the
pay stubs are not very good evidence of final tax liability.

                                             11
No. 31365-4-III
In re Parenting ofD. WL.


following the hearing, the trial court found that Mr. Lee had an actual monthly net income

of $7,308.59, which resulted in a $962.00 monthly child support payment for 2012 and a

$936.94 monthly payment going forward. 3

       On October 29, 2012, Mr. Lee filed a second motion for reconsideration on the

same failure to deduct taxes argument. However, Mr. Lee also included a new

argument-that Ms. Stillman's pretrial intransigence precluded the court from awarding

her attorney fees at the trial. Another round of briefing ensued. The trial court denied

Mr. Lee's second motion for reconsideration without oral argument. This appeal

followed.

       F.     Payment of transcription costs for appeal

       On January 28, 2013, Mr. Lee filed a statement of arrangements notifying this

court that transcripts from trial were unnecessary per RAP 9.2. Accordingly, Mr. Lee

never ordered verbatim reports of proceedings from trial or his own posttrial motions for

this appeal. On February 8, Ms. Stillman designated transcripts from the trial as well as

the two posttrial hearings under RAP 9.2(c), and asked Mr. Lee to coordinate with the

court reporter to pay for the transcripts. Mr. Lee filed a response and argued that


      3  This decrease in Mr. Lee's child support obligation was because Ms. Stillman
anticipated that St. Luke's would promote her from part-time to full-time by 2013, so the
trial court imputed full-time employment for Ms. Stillman beginning in 2013.

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No. 31365-4-111
In re Parenting of D. WL.


transcripts were unnecessary because the trial court file was sufficient to show that Ms.

Stillman defied orders and filed false claims, and therefore this court could determine Ms.

Stillman was intransigent as a matter of law. Similarly, Mr. Lee argued that the trial court

file contained the September 2012 "agreement," and therefore this court could determine

it was binding as a matter of law.

          Ms. Stillman moved this court to compel Mr. Lee to order and pay for the

transcripts. Our court commissioner determined that RAP 9 .2(c) required Ms. Stillman to

file her motion with the trial court. The trial court granted Ms. Stillman's motion in part,

and found that Mr. Lee needed to order "that portion of the transcript that encompasses

the Court's rulings," both pretrial and posttrial. RP (Apr. 19, 2013) at 54. The trial court

stated:

          [A]s I recall, Mr. Mason's argument [on the intransigence issue] was,
          [']Look at the entire file, Judge. She didn't do this, she didn't do this, et
          cetera.['] So when it comes to that issue, the transcript of the Court's oral
          decision plus a review of the entire file will enable you to argue and will
          enable Mr. Mason to argue without the necessity of a transcript of the
          testimony at trial

                 I'm not finding that the intransigent argument needs anything
          but just the Court's ruling and then this [sic] historic pleadings and
          contempt ....

RP (Apr. 19, 2013) at 50-52.




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No. 31365-4-111
In re Parenting ofD. W.L.


       On April 24, 2013, the trial court entered a written order requiring Mr. Lee to pay

for transcripts of the October 24, 2012 and November 1, 2012 hearings. Mr. Lee

thereafter ordered transcripts from these hearings, as well as a transcript from the

April 19, 2013 hearing, and filed them. Ms. Stillman moved the trial court to reconsider

its order, arguing the trial court also intended to compel Mr. Lee to order its immediate

posttrial rulings on September 11, 2012. The trial court denied Ms. Stillman's motion to

reconsider. Ms. Stillman filed a notice of appeal, No. 31811-7-111, assigning error to the

trial court's April 24, 2013 written order and its subsequent order denying

reconsideration. Ms. Stillman later withdrew that appeal. On October 15, 2014, Ms.

Stillman ordered the September 10 and 11, 2012, transcripts for this court's review.

                                        ANALYSIS

       Mr. Lee seeks to reargue the case to this court. He attempts to frame the standard

of review as de novo by citing to the written record rather than the trial testimony. On the

issue of attorney fees, he argues Ms. Stillman was not entitled to attorney fees because

she was intransigent in that her amended petition improperly alleged protective factors,

and also that she failed to assure Mr. Lee that she would adhere to the court

commissioner's temporary visitation order. On the issue of child support, he argues the

trial court erred in not adhering to an e-mail agreement between counsel that his 2012 pay


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No. 31365-4-111
In re Parenting ofD. W.L.


stubs were sufficient for calculating his net income; or alternatively, the trial court

improperly penalized him for not timely filing his tax returns. Because the trial court, not

the appellate court, is the finder of facts, we must examine the true bases of the trial

court's decisions, and whether the required quantum of evidence supports these decisions.

       A.     Bases of attorney fee award

       RCW 26.26.140 gives the trial court discretion to award attorney fees to a party in

an action filed pursuant to chapter 26.26 RCW. In re Marriage ofT., 68 Wn. App. 329,

334, 842 P.2d 1010 (1993). The trial court required Mr. Lee to pay a portion of Ms.

Stillman's attorney fees on the basis that Ms. Stillman had substantial need, and Mr. Lee

had the ability to pay. Mr. Lee does not assign error to the trial court's determinations in

this respect. Rather, Mr. Lee argues that the trial court is or should be precluded from

awarding fees because Ms. Stillman was intransigent.

       During closing arguments, the parties argued the issue of intransigence to the trial

court. In its oral ruling, the trial court acknowledged some difficulty in getting the initial

visits scheduled, but did not classify this difficulty as being caused by Ms. Stillman, much

less by her intransigence. The trial court, however, refused to require Mr. Lee to pay the

portion of Ms. Stillman's attorney fees relating to this initial difficulty. In doing so, the




                                              15
No. 31365-4-111
In re Parenting ofD. W.L.


trial court declined to reimburse Ms. Stillman for $1,500 of her attorney fees that she paid

her attorney as a retainer.

       There is no evidence that Ms. Stillman was intransigent. The fact that Mr. Lee

repeatedly filed motions when he anticipated that Ms. Stillman would violate the

commissioner's order does not establish intransigence. The fact is Ms. Stillman never

violated a court order. But even if Ms. Stillman improperly alleged protective factors in

her amended petition, and even if she failed to timely assure Mr. Lee that visitations

would occur as ordered, we find no abuse of discretion in the trial court's decision to

award attorney fees incurred after these initial difficulties. We conclude that the trial

court did not abuse its discretion when it apportioned attorney fees in a manner that

reimbursed Ms. Stillman only for those fees incurred after the initial difficulties.

       B.     Bases of child support order

       In its oral ruling, the trial court explained it did not deduct state and federal taxes

from Mr. Lee's W-2s because Mr. Lee failed to provide sufficient evidence of the

amounts he ultimately had to pay. RCW 26.19.071(2) requires a party to provide tax

returns for the preceding two years and current pay stubs to verify income and

deductions. It is undisputed that Mr. Lee failed to provide the documents required by

RCW 26.19.071(2) either prior to or during the trial. However, his accountant prepared



                                              16
No. 31365-4-III
In re Parenting ofD. W.L.


returns for 2010 and 2011 after trial, and Mr. Lee filed these returns with the court

posttrial and unsuccessfully argued that the state and federal taxes reflected in those

returns should be deducted in calculating his net income.

       Mr. Lee makes two arguments as to why the trial court erred in rejecting his

reconsideration motion. First, he argues that the September 4, 2012 e-mail from Ms.

Stillman's counsel constituted an agreement that Mr. Lee's net income would be based on

the deductions shown in the 2012 pay stubs. Second, he argues that the trial court refused

to consider the filed returns as a discovery sanction, and that the sanction was in error

because Ms. Stillman failed to establish prejudice.

              1.     The September 4, 2012 e-mail

       Ms. Stillman's attorney struck her motion to compel discovery once Mr. Lee

provided the 2012 pay stubs. In striking the motion, Ms. Stillman's attorney stated:

       In reviewing the pay statements you sent, it is apparent that not all were
       provided. However, I believe I have enough to calculate his gross and net
       monthly incomes. I will strike the hearing set for the 6th.

CP at 518. We note that there is nothing in the e-mail that indicates which deductions

Ms. Stillman agreed to in the pay stubs. We also note that Ms. Stillman did not deduct

the state and federal taxes shown on the pay stubs in her child support worksheets she

filed on the day of trial. In response to Ms. Stillman not deducting state and federal taxes,



                                             17
No. 31365-4-III
In re Parenting ofD. W.L.


Mr. Lee offered and the court admitted his 2009 and 2010 W-2s. Finally, we note that the

above e-mail response did not cause Mr. Lee to detrimentally rely; rather, his 2010 and

2011 tax returns were not ready prior to trial, and were not prepared until several weeks

after trial. For all these reasons, the trial court did not err in determining that Ms.

Stillman's September 4, 2012 e-mail was not an agreement to calculate Mr. Lee's net

income by deducting the state and federal taxes shown on the 2012 pay stubs.

              2.      Failure to admit tax returns after trial

       The trial court correctly observed that the 2010 and 2011 tax returns that were filed

weeks after trial were not newly discovered evidence, but rather were newly created

evidence. Mr. Lee argues that the trial court refused to admit the 2010 and 2011 tax

returns as a sanction, and such sanctions constitute error because Ms. Stillman was not

prejudiced by the late disclosures. In support of his argument, he cites Burnet v. Spokane

Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997).

       In Burnet, the trial court precluded the plaintiffs from pursuing their corporate

negligence claim based on their violation of a scheduling order. Id. at 491-92. We

affirmed the sanction, but the Supreme Court reversed. In reversing, the Burnet court

held that when imposing sanctions for discovery violations under CR 37(b)(2), the trial

court must indicate on the record whether the sufficiency of a lesser sanction was


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No. 31365-4-111
In re Parenting ofD. WL.


explicitly considered, whether the conduct that lead to the sanction was willful, and

whether the violation substantially prejudiced the opponent's ability to prepare for trial.

Id. at 493-94.

          Here, unlike Burnet, the trial court was faced with the decision of whether to admit

evidence after trial. The proper analysis falls under CR 59, not CR 37(b). Because Mr.

Lee does not attempt to analyze the issue on appeal under CR 59, we need not either.

Rather, we conclude that Burnet is inapplicable when considering whether evidence

should be admitted posttrial under CR 59.

          C.     Attorney fees on appeal

          Both parties request attorney fees against the other. Because Ms. Stillman has

prevailed, we consider her request. She argues that she is entitled to an award of attorney

fees based on (1) RCW 26.26.140; (2) RCW 26.18.160; (3) Mr. Lee's intransigence;

(4) Mr. Lee's noncompliance with RAP 9.2(c); and (5) RAP 18.9, relating to a frivolous

appeal.

       As previously stated, RCW 26.26.140 authorizes an award of reasonable attorney

fees to a prevailing party in an action filed pursuant to chapter 26.26 RCW. We exercise

our discretion and award Ms. Stillman her reasonable attorney fees on appeal. We

exercise our discretion in this manner because the trial and this appeal likely would have


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No. 31365-4-111
In re Parenting ofD. W.L.


been unnecessary had Mr. Lee timely prepared his 2010 and 2011 tax returns and

provided those returns and his pay stubs to Ms. Stillman.

       Ms. Stillman is also entitled to costs under RCW 26.26.140 for providing the

transcripts from the trial proceedings on September 10, 2012, as well as costs for

providing the transcripts from the trial court's oral rulings on September 11, 2012. See

RAP 9.2.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                                                              j
WE CONCUR:




                                            20
