                                                                                                  AIL IED
                                                                                     COURT OF APPEALS
                                                                                          DIVPS101

                                                                                    2013 JUL 23 W1 9: 16
                                                                                    k F'
                                                                                    SAT\, IA            M,PTD1N
                                                                                    BY
                                                                                              0




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II


In the Matter of the Parentage of B. .
                                  H.,
                                    J
                              Child,

JAMES HAMILTON,
                              Respondent,                          No. 43094 1 II
                                                                             - -


       and
                                                             UNPUBLISHED OPINION
MICHELLE A.BALDWIN, now JOHANSEN,
                    Mother,

      IM




DEPARTMENT OF SOCIAL AND HEALTH
SERVICES,

                                Appellant.



           MCCARTHY, J. . The Department of Social and Health Services Division of Child
                     T. —
                      P

Support ( CS)appeals a trial court's attorney fees award to James Hamilton following DCS's
        D

attempt to establish Hamilton's support obligation for his 16- old daughter who had run
                                                             year -

away from home. The trial court ordered DCS to pay Hamilton the child support that DCS had

collected from the child's mother while the child lived with relatives, and it also awarded

Hamilton $ 2, 00 for attorney fees under ( )
         1 0                             1 RCW 4.4.2)
                                               350, (
                                                 8   RCW 4.4.and (3)
                                                         185,
                                                          8        RCW

1
    Judge John A.McCarthy is serving as judge pro tempore of the Court of Appeals, Division II,
under CAR      21( ).
                 c
No. 43094-
    11-  1



140.
26. 6. We hold that the trial court erred in awarding Hamilton fees because the trial court
  2

relied on inapplicable statutes. Accordingly, we vacate the attorney fees award and remand to

the trial court for further proceedings.

                                             FACTS


       Hamilton is the biological father and legal physical custodian of BJH. In July 2010,

BJH ran away from home. BJH stayed with her boyfriend and at a youth shelter before moving

in with her stepaunt and uncle, the Shoots. The Shoots promptly contacted Child Protective

Services (CPS)to report that BJH had run away from home and was staying with them. CPS

interviewed BJH, Hamilton, and the Shoots. CPS determined that although Hamilton preferred

BJH to return home and abide by his rules, he did not want to force her to do so. Hamilton

agreed that BJH could stay with the Shoots, but he refused to sign any custodial agreement,

financially assist the Shoots in taking care of BJH, or sign any paperwork allowing the Shoots to

enroll BJH in school.


       Karen Shoot then applied to DCS for support enforcement services and public assistance

for BJH. As part of the application, Karen Shoot attested that she had physical custody of BJH

and that she did not wrongfully deprive the legal physical custodian of custody. After the Shoots

applied for public assistance for BJH's care, DCS stopped distributing support payments to

Hamilton that it collected from BJH's mother. On August 27, 2010, DCS sent Hamilton notice

that it was enforcing a 1996 child support order entered in Grays Harbor County Superior Court




2 We refer to BJH, a minor, by her initials to protect her privacy.

3 DCS distributed these support payments directly to the Shoots or used them to reimburse the
State for public assistance paid for BJH's care.
                                                   2
No.43094 1 II
         - -



that set his support obligation at $ 90. 6 per month. Hamilton called DCS and claimed that he
                                   3 6
should not have to pay support for the month of August because BJH lived with him in August;

DCS treated the telephone call as an oral hearing request. Once Hamilton's attorney informed

DCS that the 1996 order it was enforcing had been superseded by a 2007 order, making

Hamilton BJH's legal custodian and ending Hamilton's support obligation, DCS withdrew the

notice of support debt and demand for payment.

       On September 5,Hamilton reported BJH as a runaway. The sheriff's office contacted the

Shoots and confirmed with CPS that Hamilton knew that BJH was with the Shoots and that he

had given permission for her to stay there. Hamilton also contacted CPS to discuss the support

paperwork he received from DCS. CPS told Hamilton that CPS did not place BJH,that she was

staying with the Shoots with his permission, and that he had a custody order that he could

enforce if he chose to do so. Hamilton reiterated to CPS that BJH could remain with the Shoots

but he would   not provide any support or sign any documents to make BJH's life easier.
       On November 18, DCS served Hamilton with an administrative notice and finding of

financial responsibility to establish his child support obligation. The matter was set for a
hearing because Hamilton claimed that he did not consent to BJH living with the Shoots and,




4
  When DCS receives an application for public assistance on behalf of a child, DCS is required to
take appropriate action to establish or enforce support obligations against the parent or other
persons owing a duty to pay support moneys. Former RCW 74. 0.
                                                       040(
                                                          1 2007).
                                                          2 ) (

5 If public assistance is paid for the care and maintenance of a child, the State may pursue a
support action to obtain reimbursement of the monies expended. RCW 74. 0A.In re
                                                                         030;  2
Parentage ofI..131 Wn. App. 207, 217, 126 P. d 79 (2006).In the absence of a controlling
              D.,A                                    3
superior court order setting a responsible parent's support obligation, DCS can set support
obligations administratively. RCW 74. 0A.
                                     055(      1).
                                               2
                                                 3
No. 43094-
    11-  1



thus, he was wrongfully deprived of custody. The administrative hearing was continued
numerous times at Hamilton's request because he wanted his child support obligation determined

by a court. On November 22,Hamilton filed an at- youth petition; the trial court granted the
                                               risk -

petition and ordered BJH to return to Hamilton's home at the conclusion of her school semester.

       On January 20,2011, Hamilton filed a petition to modify the 2007 child support order,

requesting that the trial court recalculate BJH's mother's support obligation and award him back

child support that DCS had collected from BJH's mother during the time BJH.ived with the
                                                                          l

Shoots. Hamilton also moved for orders setting his back support obligation at zero and awarding

him attorney fees against DCS. Although DCS filed a notice of appearance in the superior court

modification case, it did not file a response to Hamilton's petition or motions.

       At the motion hearing, DCS argued that Hamilton was not entitled to the support

payments that DCS collected from BJH's mother and withheld from Hamilton during the period

that BJH lived with the Shoots. DCS did not litigate Hamilton's back support obligation, which

was set at zero. The trial court ruled that DCS could not retain the child support it had collected

from BJH's mother during the period that BJH lived with the Shoots. The trial court further

entered an order of child support setting Hamilton's back support obligation at zero, awarded a

judgment of 1676 against DCS for the withheld support, and reserved an award of attorney
            $ ,

fees. Once the order relieving Hamilton of back child support was provided to DCS, DCS

dismissed the pending administrative action seeking child support from Hamilton.




6
 DCS is authorized to excuse support payments from a legal custodian who has been wrongfully
deprived of physical custody of the child. RCW 74. 0.
                                               065.2
                                                 4
No. 43094-
    11-  1



       Months later, in a separate order, the trial court ordered DCS to pay Hamilton $ 2, 00 for
                                                                                      1 0

attorney fees. DCS timely appeals only the award of attorney fees.
                                            ANALYSIS


       DCS argues that the trial court erred in awarding attorney fees to Hamilton because

attorney fees are not warranted under any of the statutory bases the trial court relied on. The trial

court concluded that an award of attorney fees against DCS was statutorily authorized by ( )
                                                                                         1

RCW 4.4.for prevailing in judicial review of an agency action, 2)
    350
      8                                                        ( RCW 4.4.for
                                                                     185
                                                                      8
responding to a frivolous action, and (3)
                                        RCW 26. 6.for costs under the Uniform Parentage
                                            140
                                              2

Act,26. 6 RCW. We agree with DCS that the trial court erred, and we vacate the attorney fees
      2

award to Hamilton.


I.      STANDARD OF REVIEW


       A trial court may grant attorney fees only if authorized by contract, statute, or a

recognized ground in equity. Gander v. Yeager, 167 Wn. App. 638, 645, 282 P. d 1100 (2012).
                                                                           3

We apply a two part review standard to orders involving attorney fees: 1) review de novo
               -                                                       "( we

Whether there is a legal basis for awarding attorney fees by statute, under contract, or in equity

and (2) review a discretionary decision to award or deny attorney fees and the reasonableness
       we

of any attorney fee award for an abuse of discretion."Gander, 167 Wn. App. at 647. A trial

court abuses its discretion if its decision is manifestly unreasonable or based on untenable

grounds or reasons. State v. Dixon, 159 Wn. d 65, 76, 147 P. d 991 (2006).
                                          2                3




7 DCS does not appeal the underlying judgment for the withheld child support of 1,
                                                                                $ 676.
                                                  E
No. 43094 1 II
          - -



II.       RCW 4.4.
              350-
                8 PREVAILING PARTY IN JUDICIAL REVIEW OF AGENCY ACTION


          The trial court identified RCW         350
                                                 4.4.as
                                                  8           a basis for the fees award and concluded that


Hamilton was entitled to fees because he had prevailed in judicial review of agency action. We

disagree because the superior court proceeding did not constitute judicial review of agency

action.



          For purposes of awarding fees under RCW 4.4.judicial review"means judicial
                                                  350, "
                                                    8

review as provided under the Administrative Procedures Act ( PA),
                                                           A    chapter 34. 5 RCW. RCW
                                                                          0

340(
4.4.The APA does not define "udicial review," Part V of the statute governs
   4
   8 ).                     j               but

judicial review. RCW 34: 5. -. The APA provides the exclusive means for judicial
                     510 598.
                       0

review of agency action. RCW 34. 5. RCW 34. 5. (4)
                             510.
                               0        570(
                                           3 and
                                           0 )   provide for judicial

r] of agency orders in adjudicative proceedings"and judicial "[ eview of other agency
 eview                                                       r]

action."Under those provisions, onlyfinal agency actions are subject to judicial review. Wells

Fargo Bank, NA v. Dep't ofRevenue, 166 Wn. App. 342, 356, 271 P. 268, 276, review denied,
                                                               M

175 Wn. d 1009 (2012). " agency action is final when it `mposes an obligation, denies a
      2              An                                 i

right,or fixes   a   legal relationship   as a   consummation of the administrative process. "' Wells


Fargo Bank, 166 Wn.App. at 356 (internal quotation marks omitted) quoting Bock v. State Bd.
                                                                  (

ofPilotage Commis, 91 Wn. d 94, 99, 586 P. d 1173 (1978)).
                        2                2

          The trial court considered Hamilton to have prevailed in judicial review of agency action

because DCS attempted to administratively set Hamilton's support obligation at $ 17 per month
                                                                               6

while BJH lived with the Shoots, but the superior court ruled that Hamilton did not owe any back

support for that period. The trial court's order states:

8
    RCW 4.4.
        350(
           1 provides, A]
           8 )         "[ court shall award a qualified party that prevails in a judicial
review of an agency action fees and other expenses, including reasonable attorneys' fees."

                                                          2
No. 43094 1 II
          - -



       Hamilton met his burden of showing that he has prevailed in a judicial review of
       agency action under RCW 4.4. Had ...
                                  350.
                                     8                Hamilton not responded to the
       administrative action, DCS] would have entered support orders against him. He
                              [
       appeared by phone at at least two of these administrative hearings and had to
       obtain contested continuances from the Administrative Law Judge. The Shoots
       contested the continuances.

Clerk's Papers (CP)at 503.

       In the absence of a controlling superior court order setting a responsible parent's support

obligation, DCS may set support obligations administratively. RCW 74. 0A. An
                                                                  055(
                                                                     1).
                                                                     2

administrative support order will be superseded to the extent an inconsistent order is entered by a

superior court. RCW 74. 0A. Thus, the administrative process parallels the judicial
                    055(
                       7).
                       2

process for determining child support obligations.

       DCS attempted to administratively set Hamilton's support obligation; it sent Hamilton a

notice and finding of financial responsibility to which Hamilton objected and requested an

administrative hearing. But the administrative hearing never occurred because Hamilton
obtained multiple continuances to allow the superior court to determine his support obligation.

       Hamilton filed for a modification of the 2007 child support order and requested, among

other that the superior court set his child support obligation to zero for the period BJH
lived with the Shoots. After the trial court entered an order relieving Hamilton of support

obligations during that period, DCS dismissed the administrative action before any

administrative hearing was held or ruling was issued.

        Thus, there was no final agency action for the superior court to review. Hamilton's suit

in superior court was not judicial review,of agency action; it was a separate proceeding Hamilton
instituted to avoid the administrative process. Accordingly, we hold that the attorney fees award

to Hamilton for prevailing in a judicial review of agency action was erroneous.


                                                 7
No. 43094 1 II
          - -


III.   RCW 4.4.
           185—
             8 FRIVOLOUS ACTION


       DCS next argues that the trial court erred by awarding Hamilton attorney fees under

RCW 4.4. Again, we agree.
    185.
     8

       Under RCW 4.4.in any civil action, a court may award attorney fees to the
                 185,
                   8

prevailing party if the action is " rivolous and advanced without reasonable cause."An action is
                                  f

frivolous if it cannot be supported by any rational argument on the law or facts. Clarke v.

Equinox Holdings, Ltd., Wn.App. 125, 132, 783 P. d 82 (1989).
                      56                       2

       Hamilton argued that DCS's attempt to set support administratively and to withhold from

him the support BJH's mother paid constituted frivolous agency action under RCW 4.4.
                                                                                185.. .
                                                                                  8

DCS responded that defense of its position was not frivolous because it had statutory authority

and a factual basis to distribute support to the Shoots (or reimburse the State)under RCW

035(
26. 3.The trial court rejected DCS's argument and authority and entered an order
   2
   2 ).

awarding fees against DCS, stating that. amilton had " emonstrated that [DCS]'
                                       H             d                      s response to

his petition and motions were frivolous or advanced without reasonable cause as required by

RCW 4.4. CP at 503.
    185."
      8


       The majority of Hamilton's petition and motions did not involve DCS. The two issues

that involved DCS were Hamilton's request that his support obligation for the period that BJH

lived with the Shoots be set at zero and his request that he receive the back support that DCS had

collected from BJH's mother but not distributed to him.


       DCS did not litigate Hamilton's back support obligation in superior court. DCS

attempted to administratively set Hamilton's support obligation, but the matter was continued to

allow Hamilton to have the matter decided in superior court. By the time Hamilton filed his

petition   in   superior court, BJH had returned to   Hamilton's home   as a   result of the at-
                                                                                               risk youth
                                                                                                    -
No. 43094 1 I1
          - -



petition proceeding. The monthly support paid by BJH's mother was sufficient to reimburse all

but $ 84 of the amount paid in public assistance for BJH's care during the time she lived with
    1

the Shoots. Because of the small amount of money at issue, DCS did not contest Hamilton's

support obligation being set at zero. DCS dismissed its administrative action after the superior

court entered its order.


       The only issue DCS litigated was whether DCS owed Hamilton back support payments

that it collected from BJH's mother during the period that BJH lived with the Shoots. The trial
court ruled that DCS was not authorized to distribute the support payments to Karen Shoot

because there was no legal assignment of custody to Karen Shoot.

       DCS maintains on appeal, as it did in its memorandum on attorney fees to the trial court,

that its position was not frivolous or advanced without reasonable cause because DCS was

statutorily authorized to pay the support it collected from BJH's mother to the Shoots rather than

to Hamilton. We agree.

       DCS relies on RCW 26. 3.
                         035(
                            2 which
                            2 ),provides:

       The division of child support may distribute support payments to the payee under
       the support order or to another person who has lawful physical custody of the
        child   or   custody   with the   payee's   consent. . . .   Prior to distributing support
       payments to any person other than the payee, the registry shall:
              a)Obtain a written statement from the child's physical custodian, under
       penalty of perjury, that the custodian has lawful custody of the child or custody
       with the payee's consent.




9 Whether DCS distributed the support payment from BJH's mother directly to the Shoots or
retained the money as reimbursement for public assistance paid to the Shoots for BJH's care is
immaterial. Payment of public assistance operates as an assignment by operation of law of any
rights to a support obligation from another person. RCW 74. 0.see also RCW 74. 0A.
                                                           330; 2                   030    2
authorizing the State to pursue a support action to obtain reimbursement for public assistance
monies expended for care and maintenance of a child).Thus, if the Shoots were entitled to
distribution of support payments for BJH,that right was assigned to the State by operation of law
when the Shoots accepted public assistance for BJH's care.
                                                       9
No. 43094 1 II
          - -



DCS argues that RCW 26. 3.
                    035(
                       2 authorized it to distribute support payments to Karen Shoot
                       2 )

because she had custody of BJH with Hamilton's consent and DCS obtained a declaration from

Karen Shoot stating under penalty of perjury that she did not wrongfully deprive Hamilton of

custody of BJH.

       Although we are not a fact -finder on this issue, we consider the evidence in the record as

part of our review of whether DCS's position was frivolous. Our review of the record before the

trial court shows that DCS had evidence that Hamilton knew that BJH was staying with the

Shoots and for months DCS also believed that he did not require her or attempt to get her to

return home. Hamilton said that although he wanted BJH to return home on her own, he did not

want to force her to return. And CPS records show that Hamilton repeatedly told its workers that

BJH could.emain at the Shoots' home.
         r


       It appears that Hamilton's early consent or acquiescence waned when DCS determined

that he needed to provide support for his daughter; and he eventually forced BJH to return home

by filing an at- youth petition in late November. Hamilton's decision to file the at- youth
               risk -                                                               risk -

petition is evidence that he withdrew his prior consent or acquiescence to BJH living with the

Shoots. But evidence of Hamilton's position during the preceding five months is consistent with

DCS's argument that the Shoots had custody of BJH with Hamilton's consent between July and

November.


       Karen Shoot's application to DCS for nonassistance support enforcement includes a

declaration signed under penalty of perjury that she-"[ not wrongfully deprive the legal
                                                 id d]

physical custodian of custody of the child."CP at 254. DCS argues that the declaration satisfies

the statutory requirement for a written statement from the child's physical custodian that the

custodian had custody with the payee's consent. Hamilton argues,that Shoot's declaration is

                                                10
No. 43094 1 II
          - -



insufficient. Because the language from the declaration does not parallel the language in RCW

035,
26. 3.reasonable minds may disagree about whether Karen Shoot's declaration that she did
  2

not wrongfully deprive Hamilton of custody satisfies the statutory requirement of a written

statement that she had physical custody with Hamilton's consent. But the issue is at least

debatable, and in light of the additional evidence DCS asserted, its position is not frivolous.

       DCS's position is frivolous only if it cannot'be supported by any rational argument on the

law or facts. Clarke, 56 Wn.App. at 132. Based on Karen Shoot's declaration signed under

penalty of perjury and the information provided to DCS from the Shoots and CPS, we hold that

DCS's position that it was authorized to pay support to the Shoots rather than Hamilton ( nd,
                                                                                        a

thus, Hamilton was not entitled to back support)was not frivolous or advanced without

reasonable cause as RCW 4.4.requires. Accordingly,the trial court erred in concluding that
                        185
                         8

RCW 4.4.provided a basis for an attorney fees award to Hamilton.
    185
     8

IV.        140 UNIFORM PARENTAGE ACT
       RCW 26. 6. —
             2


       Finally, DCS argues that the trial court erred by awarding Hamilton fees under RCW

140.
26. 6. The parties dispute whether RCW 26. 6.should. pply to the modification action.
  2                                    140
                                         2         a

       RCW 26. 6.provides that an attorney fees award against a State agency, such as
           140
             2

DCS, shall be determined under RCW 4.4. Because the trial court relied on RCW
                                   185.
                                     8

185
4.4.as an independent basis for awarding fees, we address it regardless of whether RCW
 8

140
26. 6.applies. Thus, since we have already determined that DCS's position was not
  2




to RCW 26. 6.provides, The court may order that all or a portion of a party's reasonable
       140
         2             "
attorney's fees be paid by another party, except that an award ofattorney's fees assessed against
the state or any of its agencies or representatives shall be under RCW 4.4. Emphasis
                                                                       185." (
                                                                         8
added.)
                                                 11
No. 43094 1 II
          - -



frivolous and RCW 4.4.does not apply, whether RCW 26. 6.applies is irrelevant and
                  185
                    8                             140
                                                    2

we do not address it fiirther.

V.      ATTORNEY FEES ON APPEAL


        In one sentence of his brief, Hamilton requests that he be awarded " easonable attorney's
                                                                           r

fees for having to respond to this appeal."Br.of Resp't at 22 23. This is an inadequate request
                                                              -

for fees because Hamilton has not provided argument and citation to authority to establish that an

attorney fee award is warranted. RAP 18. (
                                     b); Bldg. Co. v. An, 81 Wn. App. 696, 704-
                                       1 Phillips

05, 915 P. d 1146 (1996).We deny Hamilton's request for fees on appeal.
         2

VI.     CONCLUSION


        Hamilton was not entitled to fees under the statutes the trial court relied on and, thus, the

trial court erred in awarding attorney fees to him. Accordingly, we vacate the attorney fees
                                                                 ii
award and remand to the trial court for further   proceedings.

        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

040,
2.6:it is so ordered.
  0


                                                    MCCARTHY, J.P.,
                                                                 7
We    concur:
                                                                      p/




ii
   Because we vacate the attorney fees award in its entirety, we do not reach DCS's argument
that the trial court miscalculated the amount of the award. But we note that even if attorney fees
were warranted for every hour Hamilton identified as related to the back support issue (including
those at the administrative level), appears that the trial court erroneously doubled that amount.
                                    it
                                                   12
