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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In re Parenting and Support of:                         NO. 70995-0-1                 en




BRITTON LAWRENCE HARPER GIBSON                          DIVISION ONE
                                                                                         9?    —<CJ

                            Child(ren)                                                   en



MARIE-CLAIRE HARPER PAGH,

                            Respondent,                 UNPUBLISHED OPINION
and
                                                        FILED: September 15, 2014
WILLARD GIBSON,
                            Appellant.



       Lau, J. — Following our remand in a prior appeal, the trial court entered findings

of fact to support its award of attorney fees to Marie-Claire Pagh based on Willard

Gibson's intransigence. Because the evidence and court's findings do not sufficiently

identify the specific acts of alleged intransigence or establish that Gibson's alleged

misconduct permeated the entire proceeding and rendered the proceeding unduly

difficult or costly, we reverse and vacate the attorney fee award.


                                              FACTS

       This case is again before us on appeal following our remand in In re Parenting

and Support of Gibson, noted at 172 Wn. App. 1012, 2012 WL 5992104, review denied.
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177 Wn.2d 1018 (2013) (Gibson I). In Gibson I, we affirmed the trial court's entry of a

domestic violence protection order (DVPO) in favor of Pagh and a parenting plan final

order. The trial court also awarded Pagh $45,876.48 in attorney fees and costs, the

entire requested amount, based on Gibson's intransigence throughout the proceedings.

Because the trial court made no findings to support the amount of the award or its

conclusion that Gibson's intransigence permeated the entire proceedings, we vacated

the award and remanded for the entry of appropriate findings of fact.

       Upon remand to King County Superior Court, the Chief Unified Family Court

Judge assigned the case to the original trial judge, who had since retired, as judge pro

tempore. Each party then submitted a memorandum addressing the issue on remand.

       On October 1, 2013, the trial court entered amended findings of fact and

conclusions of law, awarding Pagh $45,876.48 in attorney fees and costs based on

Gibson's intransigence. In support of the award, the court entered the following

findings:
       2.10 Other
               Respondent failed to attend the court-required parenting seminar,
       failed to give the court or petitioner a Financial Declaration or other
       required financial disclosures, failed to respond to discovery requests
       before the Discovery Cut-off, and failed to meet Case Schedule
       Deadlines. Respondent failed to clear up various warrants for his arrest,
       contacted petitioner in violation of a DVPO, failed to personally attend any
       of the multiple hearings scheduled in this case, substituted counsel
       several times, and failed to appear at trial. Respondent failed to timely
       disclose trial witnesses, causing petitioner's attorney to file motions in
       limine. Despite respondent's failure to meaningfully participate in this
       case, respondent requested several continuances. Respondent's wrongful
       conduct and intransigence permeated the entire proceedings, made this
       case unduly difficult for petitioner, and caused petitioner to unnecessarily
       incur attorney fees and costs. Given these circumstances, Petitioner
       reasonably incurred $45,074.00 in attorney fees and $802.48 in costs in
       this action for 199 hours of legal work required to take this matter through
       trial.


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              The court finds that the Respondent persistently attempted to
      manipulate, harass and intimidate the Petitioner by delay, failure to
      personally appear or engage in the parenting plan process, multiple
      substitutions of counsel, and cooperate with court scheduling orders or
      discovery as part of his continuing pattern of domestic abuse. The impact
      of this manipulation was manifest in the Petitioner's demeanor -- anxiety
      and fear at multiple hearings.
              Because of the Respondent's repeated deliberate intransigence the
      court's statutory obligation to arrive at a best interest of the child outcome
      independent of the position of the parties was frustrated and delayed.
              The necessity of the Petitioner's attorney to monitor and report to
      the court on the status of the delays purportedly caused by the
      Respondent's criminal matters contribute to Petitioner's attorney fees and
      permeated the entire case.

Gibson appeals.

                                       ANALYSIS

      As we noted in Gibson I, the trial court has discretion to award attorney fees

when one party's intransigence causes the other party to incur unnecessary legal

expenses. In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). The

determination of intransigence necessarily rests on the specific facts of each case, but

may involve "foot-dragging," obstruction, the filing of unnecessary or frivolous motions, a

refusal to cooperate with the opposing party, refusal to comply with discovery requests,

and any other conduct that makes the proceeding unduly difficult or costly. In re

Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992) (quoting Eide v.

Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969)): see also In re Marriage of Foley, 84

Wn. App. 839, 846, 930 P.2d 929 (1997); In re Marriage of Crosetto, 82 Wn. App. 545,

564, 918 P.2d 954 (1996).

       Generally, the trial court must segregate fees caused by intransigence from

those incurred for other reasons. Crosetto, 82 Wn. App. at 565. But when a party's

misconduct "permeate[s] the entire proceedings, the court need not segregate which


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fees were incurred as a result of intransigence and which were not." In re Marriage of

Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002). We review the award of attorney
fees for an abuse of discretion.

       On remand, the trial court entered numerous, cursory findings. We conclude that

the evidence and findings fail to support an attorney fee award based on intransigence.

       Failure to Attend Court-Reguired Parenting Seminar

       There is no dispute that Gibson failed to attend the parenting seminar required as

part of a Family Court Services (FCS) evaluation. See King County Local Family Law

Rule (KCLFLR) 13 (Parenting Plan and Child Custody Procedures). But FCS closed its

case not only because Gibson failed to attend the seminar but also because both

parties "failed to return the required paperwork." Nothing in the record indicates that the

trial court ever addressed this issue or considered any of the available sanctions for the

failure to comply. See KCLFLR 13(c)(4). Nor has Pagh identified any evidence

explaining the circumstances surrounding the parties' failure to complete the evaluation

or establishing that Gibson's omission resulted in undue delay or unnecessary legal

expenses. Gibson's failure to complete the parenting seminar does not support the

determination of intransigence.

       Failure to File Financial Declarations

       The trial court found that Gibson failed to submit "a Financial Declaration or other

required financial disclosures." The court's findings do not identify the "required

financial disclosures" that Gibson failed to provide. Under KCLFLR 10, a party is

required to file a financial declaration for any motion or trial "that concerns," among

other things, child support or attorney fees. Pagh contends that Gibson's failure to file a

financial declaration violated KCLFLR 10 because her petition for a residential schedule

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and parenting plan also included a request for child support and because she requested

an award of attorney fees at trial.

       But child support was not an issue before the trial court as part of Pagh's

parenting plan action or her petition for a DVPO. The court's judgment establishing the

residential schedule and parenting plan recited that "child support is being pursued

administratively through the Department of Social and Health Services."

       Pagh also relies on the fact that she requested an award of attorney fees during

the course of trial on February 1, 2011. That request, however, was based solely on

Gibson's intransigence. When the court awards attorney fees based on intransigence,

"the financial resources of the parties are irrelevant." Burrill, 113 Wn. App. at 873.

Moreover, the trial court here awarded Pagh the entire amount of fees and costs that

she requested without consideration of Gibson's ability to pay. Pagh has made no

showing that Gibson's ability to pay was an issue before the trial court or that his failure

to provide a financial declaration impeded the resolution of any of her claims.

       Multiple Reguests for Continuances

       The trial court found that Gibson requested "several continuances." The original

case schedule, filed January 26, 2010, set trial for December 27, 2010. In June 2010,

counsel for Gibson requested a 30-day continuance for a hearing on an extension of

Pagh's protection order. The trial court granted the motion and reserved Pagh's request

for lost wages and attorney fees. But nothing in the record indicates that Pagh pursued

that request.

       On November 30, 2010, the trial court granted Gibson's motion for a 30-day

continuance of the trial date. The record does not indicate that Pagh opposed a

continuance, and the trial court rescheduled trial for January 31, 2011. When trial

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began on February 1, 2011, Gibson's counsel asked for another continuance, which the

trial court denied.

          Consequently, the trial court granted only two brief continuances, resulting in a

total trial delay of about 30 days. The trial court did not condition the continuances on a

payment of terms or suggest that the requests for a continuance were improper or that

they unduly delayed the proceedings.

          Failure to Attend Hearings and Trial

          With one exception, Gibson did not personally attend pretrial hearings or the trial.

But Gibson was represented by counsel during each of the hearings and at trial.

Although the trial court noted that Gibson's failure to appear could hamper his ability to

sustain his evidentiary burden of proof, the court did not direct Gibson to appear

personally or sanction him for failing to appear. Nor do the court's findings establish

that Gibson's voluntary absence improperly impeded Pagh's ability to advance her

case.


          Failure to Clear Up Warrants

          The trial court found that Gibson had "failed to clear up various warrants for his

arrest." Gibson acknowledged that he did not appear at pretrial hearings and at trial

primarily because of an ongoing criminal prosecution and outstanding arrest warrants.

The trial court entered no findings regarding the reasons for Gibson's failure "to clear

up" his warrants. Moreover, as indicated, the record does not support the determination

that Gibson's failure to appear personally constituted intransigence. Under the

circumstances, the existence of the outstanding warrants was irrelevant to Pagh's

action.




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       Substitution of Counsel

       The trial court found that Gibson "substituted counsel several times." On appeal,

Pagh asserts that Gibson's substitution of several attorneys "resulted in various

continuances" that caused delays and that she "incurred fees in opposing at least one of

the continuances." Br. of Resp't at 21. But the record and the trial court's findings fail to

demonstrate that the two relatively brief continuances that were granted—one pretrial

hearing continuance and one trial continuance—involved misconduct or unduly delayed

the proceeding.

       Failure to Meet Discovery or Case Schedule Deadlines

       The trial court found that Gibson "failed to respond to discovery requests before

the Discovery Cut-off, and failed to meet Case Schedule Deadlines." The original case

schedule provided that the deadline for disclosure of possible primary witnesses was

September 27, 2010. The deadline for disclosure of additional witnesses was October

25, 2010. When the trial court continued the trial date from December 27, 2010, to

January 31, 2011, it extended the discovery cut-off date to January 1, 2011, but did not
otherwise refer to the witness disclosure deadlines, which had already passed.

       Pagh submitted her initial set of interrogatories to Gibson on December 1, 2010.
Gibson served Pagh with his primary and rebuttal witness list on December 29, 2010.
Counsel for Gibson conducted a deposition of Pagh on December 31, 2010; Pagh did

not seek to depose Gibson. Pagh received Gibson's answers to her interrogatories on

January 4, 2011, three days after the discovery cut-off date.
       On January 28, 2011, three days before trial, Pagh filed a motion in limine asking
the court to strike Gibson's proposed witnesses and award attorney fees. Pagh

maintained that she had been unable to contact most of the witnesses and that

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Gibson's disclosure of the witnesses was untimely. On the first day of trial, counsel for

Pagh acknowledged that the motion was moot because Gibson had decided to call no

witnesses, and the court did not address the motion further.

       Pagh's claim that Gibson "fail[ed] to participate in discovery" is clearly without

merit. Br. of Resp't at 19. The record indicates, however, that Gibson's submission of

his witness list and answers to interrogatories arguably failed to comply with the case

schedules. But both parties here engaged in only minimal discovery, with all of it

occurring after the trial court's November 30, 2010 decision continuing the trial date to

January 31, 2011. The trial court made no findings that Gibson's tardiness was the

result of misconduct or a part of any other ongoing obstructionist conduct. Gibson's

delayed submission of a witness list and tardy response to interrogatories provide no

support for the trial court's determination that intransigence permeated the entire

proceeding.

       Pagh further asserts that Gibson's answer to interrogatories were "incomplete

and inaccurate." Br. of Resp't at 19. The trial court entered no such findings, and Pagh

fails to identify any relevant portion of the record to support this allegation.

       Violation of a Domestic Violence Protection Order

       The trial court found that Gibson contacted her "in violation of a DVPO." The

court did not identify the nature or date of the alleged violation. Pagh claims the

violation involved an email contact in January 2010 and multiple contacts through

Gibson's Facebook account. But Pagh makes no showing that the alleged violations,

which Pagh apparently reported to the police, delayed or obstructed her pending action.




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        Persistent Attempts to Manipulate, Harass, and Intimidate

        The trial court found that Gibson

        persistently attempted to manipulate, harass and intimidate the Petitioner
        by delay, failure to personally appear or engage in the parenting plan
        process, multiple substitutions of counsel, and cooperate with court
        scheduling orders or discovery as part of his continuing pattern of
        domestic abuse.


The findings further recited that Gibson's intransigence delayed and frustrated the

court's efforts to determine the best interests of the child.

        But these findings, which essentially repeated the preceding findings, are

insufficiently specific to permit meaningful appellate review. Nor has Pagh identified

any statement or communication during the course of the proceedings below in which

the trial court characterized Gibson as contemptuous or intransigent or suggested that

any of his actions or omissions were intended to "manipulate, harass and intimidate"

Pagh.

        In summary, the findings of fact entered after remand failed to identify sufficient

specific acts of misconduct to constitute intransigence or demonstrate that the alleged

intransigence was so persistent or continuous as to permeate the entire proceedings.

The alleged intransigence here was not analogous to that which courts have found

sufficient to support a comparable award of attorney fees. Cf. Foley, 84 Wn. App at 846

(attorney fees properly awarded for intransigence in child support action where father's

filing of numerous frivolous motions, failure to appear at his own deposition, and refusal
to read correspondence from wife's attorney caused numerous trial delays and caused

wife to incur additional attorney fees); Burrill, 113 Wn. App. at 873 (wife's

"unsubstantiated, false, and exaggerated allegations against [husband] concerning his
70995-0-1/10




fitness as parent. . ." permeated the entire proceeding and caused unnecessary and

significant attorney fees). We therefore reverse and vacate the trial court's order

awarding attorney fees. We decline to remand this matter yet again for the entry of the

findings necessary to support an award of attorney fees for intransigence.

       Because we reverse the attorney fee award, we need not address Gibson's

claims that he never agreed to the appointment of the judge pro tem on remand or that

the trial court's finding that Pagh "reasonably incurred $45,074.00 in attorney fees and

$802.48 in costs in this for 199 hours of legal work . . ." was insufficient to support the

amount of fees awarded for intransigence.

       Finally, Gibson has assigned error to the trial court's failure on remand to correct

or clarify certain findings in the original decision that this court in Gibson I characterized

as irrelevant and immaterial. Because those findings are unrelated to the issue of

intransigence, they did not fall within the scope of this court's remand. Gibson has

therefore failed to identify any error. Gibson's attempts to reargue issues decided in

Gibson I are also without merit.

       Neither party is awarded attorney fees on appeal.

       Reversed and vacated.




WE CONCUR:




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