                                                                                                        FILED
                                                                                                JOUPT OF APPEALS
                                                                                                   DIVISION Jy
                                                                                            2013 JU 30 AM !0:33
      IN THE COURT OF APPEALS OF THE STATE OF W.
                                                                                                   TO      SP! GTOtI
                                                     DIVISION II                            OY
                                                                                                    OE    TY
MARIUSZ K.KOWALEWSKI,                                                          No. 43067 3 II
                                                                                         - -


                                        Appellant,

           V.




BARBARA B. KOWALEWSKA,                                                     UNPUBLISHED OPINION




           PENOYAR, J. — Mariusz Kowalewski appeals the trial court's denial of his motion to

terminate a restraining order. Because he failed to provide a sufficient record for review, there is

nothing in the record to establish any error in the trial court's order and we affirm. Additionally,

we affirm the trial court's award of attorney fees to Barbara Kowalewska and we award Barbara
attorney fees on appeal.

                                                           FACTS


           The trial court entered a decree dissolving Mariusz and Barbara's marriage on March 25,

2005. The decree included a permanent restraining order against Mariusz, enjoining him from

coming within 500 feet of Barbara's home, workplace, or school.

           In October 2011, Mariusz moved to amend the decree, asking the trial court to remove

the permanent restraining order. The trial court denied his motion and awarded Barbara $ 500
                                                                                       1,
in attorney fees.        Mariusz moved for reconsideration, arguing that the trial court should have

removed the       restraining    order and should not have awarded Barbara attorney fees. The trial


court denied his motion for reconsideration and confirmed the award of attorney fees, finding




1
    For   clarity, we   refer to the   parties by   their first   names.
43067 3 II
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that (1)Mariusz's motion was frivolous because he did not rebut Barbara's evidence of post-

restraining order harassment and ( )
                                 2 Barbara was on state assistance. Mariusz appeals.

                                           ANALYSIS


I.      MOTION TO TERMINATE THE RESTRAINING ORDER


        Mariusz argues that the trial court erred by denying his motion to terminate the

restraining order. Because he failed to provide a sufficient record to review this issue, we affirm

the trial court.


        Whether to grant, modify, renew, or terminate a protection order is a matter of judicial

discretion.   In re Marriage of Freeman, 169 Wn. d 664, 671, 239 P. d 557 (2010);
                                               2                  3             RCW

26. 0. Therefore, we review a trial court's decision whether to terminate a protection
130(
   1).
   5

order to determine if the decision was manifestly unreasonable or based on untenable grounds or

reasons. State ex rel. Carroll v. Junker, 79 Wn. d 12, 26, 482 P. d 775 (1971).The appellant
                                               2                2

has the burden of providing a sufficient record to review issues raised on appeal. Story v. Shelter

Bay Co., Wn.App. 334, 345, 760 P. d 368 (1988).
       52                       2

        Here, there is nothing in the record' to establish the trial court's basis for denying

Mariusz's motion. The trial court's order merely states, the petitioner's motion to amend the
                                                         "

permanent restraining order outlined in paragraph 3. of the decree is denied."Clerk's Papers
                                                   8

CP)at 76. The record does not include transcripts from the argument before the trial court or

any other written or oral rulings by the trial court regarding this issue. Moreover, the record we

do have supports the trial court's decision because it establishes that Mariusz violated a previous




                                                 0)
43067 3 II
      - -



restraining order concerning Barbara. Without a record of the trial court's grounds and reasons
for denying the motion, Mariusz cannot establish, as he must, that the decision was unreasonable

or untenable. Indeed, he does not identify in his brief any allegedly unreasonable or untenable

grounds that the trial court relied on. Therefore, we affirm the trial court. See City ofSpokane v.

Neff, 152 Wn. d 85, 91, 93 P. d 158 (2004) affirming the trial court because, absent a record,
            2               3              (

the appellant cannot show that the trial court's decision was manifestly unreasonable).
II.    ATTORNEY FEES


       A.      TRIAL


       Mariusz argues that the trial court erred       by awarding   Barbara attorney fees.   Again,

Mariusz has failed to provide us with a complete record, but the evidence we do have supports

the trial court's finding that the action was frivolous. We hold that the trial court did not err by

awarding Barbara attorney fees.

       We review a trial court's grant or denial of attorney fees to determine if the decision was

manifestly unreasonable or based on untenable grounds or reasons. Freeman, 169 Wn. d at 676;
                                                                                 2

Junker, 79 Wn. d
             2       at 26.   Here, the trial court awarded Barbara attorney fees because it

determined that the motion was frivolous and that she was on state assistance. The record does

not support the finding that Barbara was on state assistance, but there is evidence to support the

trial court's finding that the motion was frivolous.




2
  See RCW 26. 0.listing the factors for a court to consider in deciding whether to
             130(   3
                    5 ) (
terminate a restraining order, including whether the respondent has committed or threatened
domestic violence, sexual assault, stalking, or other violent acts since the order was entered and
whether the respondent has violated the terms of the order).
                                                 3
43067 3 II
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        RCW 4.4.allows the trial court to award the prevailing party attorney fees incurred
            185
             8

in opposing a frivolous action. Bldg. Indus. Ass'n of Wash. v. McCarthy, 152 Wn. App. 720,

745, 218 P. d 196 ( 2009). The trial court must first enter written findings that the action is
          3


frivolous. RCW 4.4. An action is frivolous if,considering it in its entirety, it cannot be
               185.
                 8

supported by any rational argument based in fact or law. Dave Johnson Ins., v. Wright, 167
                                                                          Inc.

Wn. App. 758, 785, 275 P. d 339, review denied, 175 Wn. d 1008 (2012).
                        3                             2

        Here, the trial court found that the motion was frivolous because there was "no rebuttal of

factual harassment post order." CP at 97. The record supports this finding: in 2004, Mariusz

pled guilty to violating a restraining order. In other words, it was established that Mariusz had

violated a previous restraining order involving Barbara. Because Mariusz has not provided us

with a complete record, we cannot determine that the trial court erred by finding Mariusz's

action frivolous in light of all of the evidence and argument. In sum, Mariusz cannot show that

the trial court erred by finding that the action was frivolous and by awarding Barbara attorney

fees.


        B.     APPEAL


        Barbara argues that she should be awarded attorney fees on appeal because the appeal
was frivolous and because courts have discretion to award fees for responding to a motion to

terminate under RCW 26. 0. An appeal is frivolous if no debatable issues are presented
                    130(
                       6
                       5 ). "

upon which reasonable minds might differ, and it is so devoid of merit that no reasonable

possibility of reversal exists." Chapman v. Perera, 41 Wn. App. 444, 455 56, 704 P. d 1224
                                                                         -        2

1985). Here, Mariusz failed to provide a complete record, failed to identify any untenable

grounds or reasons for the trial court's decision, and relied on an inapplicable version of the

controlling statute. We award Barbara fees on appeal.
                                                 2
43067 3 II
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      We affirm.


      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




We concur:



              0




       Hunt, J. /




     A or n,J.




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