                                                                                                                   F1?
                                                                                                            Obi   T 0    V PEA!   S
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                  2015 JUL — 7
                                                                                                                              46
                                               DIVISION II
                                                                                                       S5

In re the Parenting and Support of:                                             No. 46217 -6 -II s
C. H. t

                                   Child,


AUTUMN L. CURTIS,


                                    Respondent,


          V.



MARCUS S. HANSEN,                                                         UNPUBLISHED OPINION




          MELNICK, J. —     Marcus Hansen appeals the trial court' s award of $5, 000 in attorney fees to

Autumn Curtis based on Hansen' s intransigence in this domestic relations case. Because the trial

court did not articulate any facts to support a finding of intransigence and failed to segregate fees

caused by any intransigence, we vacate the trial court' s attorney fees award.
                                                      FACTS


          Hansen    and   Curtis have   one child,   C. H.,   who   lives primarily   with   Curtis.   At the time of



trial, Hansen served in the military and had been stationed in Italy since September 2012. He had
contact with his child through Skype visits facilitated by both Curtis and his mother, Jessica

Hansen.'       Jessica' s contact with her grandchild became a major subject of litigation.




t To provide confidentiality, we order the use of the minor' s initials in the case caption and in the
body of the opinion. 2006- 1 General Order of Division II.
 To   avoid confusion, we refer     to Jessica   by first     name.   We intend   no   disrespect.
46217 -6 -II



             In 2012, Jessica had           unsupervised          visitation         time     with    C. H.     In September 2012, in


anticipation of Hansen' s move to Italy, Curtis filed a motion for temporary orders regarding

visitation schedules and child support. Curtis filed a declaration outlining her concerns regarding

                                                          Jessica'                              time   with     C. H.   Curtis explained
C. H.'   s    safety   and well-   being during                        s   unsupervised




Jessica' s history of mental illness, including suicide threats, suicide attempts, and hospitalizations.
In response, Hansen filed the declaration of one of Jessica' s psychologists, who summarized

Jessica' s mental health history and diagnoses, including ongoing disorders. Jessica' s psychologist

advised that he observed a very positive relationship between Jessica and C.H.

              In late October 2012,      following         a   hearing,         the trial   court ordered      that "[ C. H.]   shall have at


least weekly         contact with [ Jessica]        for   at   least   several      hours    per visit."      Clerk' s Papers ( CP) at 87.


However, the trial          court    also   ordered        that while           he is in     Italy,   Hansen "    may not designate or

delegate his residential time or visitation rights to [ Jessica] or any other person in his absence."

CP   at      86.   Additionally,    the trial   court ordered              that   C. H. " shall have reasonable Skype privileges


with [ Hansen] while [ Hansen]              is in   Italy in the           event   that the   child   is visiting   with [ Jessica]."   Z CP


at 86.


              In November 2012, Hansen filed a motion to establish a weekly visitation schedule for

C.H. and Jessica. In response, Curtis filed another declaration wherein she expressed her concerns

for C.H.' s safety and well-being while in Jessica' s care. She also provided the trial court with 911
transcripts related to Jessica' s            suicide      threats.         In January 2013, the trial court entered an agreed

order establishing a visitation schedule which permitted Jessica to have weekly contact with C.H.




2 The order does not explicitly state that the purpose of Jessica' s visitation is to facilitate C.H.' s
 Skype visitation with Hansen. It also does not order that Hansen is entitled to a specific amount
 of visitation with C. H.


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46217 -6 -II



         In November 2013, Curtis               moved          for   an   order   terminating    grandparent     visitation.       In


another declaration, Curtis again expressed significant concerns over C. H.' s safety and well-being

while   in Jessica'   s care.     Curtis declared that           she "    only learned of how suicidal and potentially

dangerous Jessica [ is]        after   requesting the 911 transcripts."              CP   at   271.    In a declaration filed on


December 6, 2013, Hansen declared that Jessica' s " mental condition should no longer [ be] in

question"   because "[    s]   he has   not   had any incidents in          over a year and a         half." CP at 237.


         In December 2013, the trial court clarified its October 2012 order. It stated that Jessica' s

contact with C. H. was to facilitate Skype visits between C. H. and Hansen and that it did not

establish separate grandparent visitation.                    The trial court accordingly denied Curtis' s motion for

an order terminating grandparent visitation and ordered that Hansen " shall continue to have weekly
Skype   privileges with [ C. H.] at [         Jessica'   s]   home every      Saturday    for three hours."       CP   at   291.   In



January 2014, the trial court denied Curtis' s motion to reconsider the order.

         In April, following an unsuccessful settlement conference, the trial court set a trial for the
week of November 12, 2013 to establish a residential schedule, parenting plan, and child support.


Because of scheduling issues, the trial court continued the trial to February 25, 2014.

         On February 13, 2014, Hansen' s attorney filed a notice of intent to withdraw, effective

immediately. On February 20, 2014, Hansen, who appeared telephonically from Italy, moved for
a continuance of      the trial.       He argued that although his attorney had been prepared for trial, as a

self -represented litigant (SRL) he needed more time to prepare. Hansen further advised the trial




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46217 -6 -II



court that his attorney withdrew because Hansen could no longer afford him. Hansen also argued

that he would be prejudiced by appearing telephonically for trial and he requested more time to

save              and   to    request        leave   so   he   could   personally    appear    in   court.   Amy Perlman, the
       money


guardian ad litem, opined that it would be in C. H.' s best interest to resolve the matter as soon as

possible, rather than continuing the trial.

         The trial court noted that the trial had already been pending for many months and expressed

                  concerns with what             looks ....      to be an intentional        attempt   to   delay   trial"   and " bad
 very strong


motives."      Report        of   Proceedings ( RP) ( Feb. 20, 2014)                at   17, 18.    The trial court found that


Hansen' s motion to continue was not brought in good faith and denied it. For this motion hearing,

the trial court ordered Hansen to pay Curtis' s attorney fees in the amount of $560, which Hansen

does not appeal.


         The   parties proceeded              to trial    beginning    on   February      25, 2014.    The trial lasted through


February    27.    Hansen participated telephonically. Prior to trial, Hansen failed to disclose any of

his   proposed witness.            He also failed to properly subpoena the witnesses through the trial court.

The trial court expressed significant concerns about what appeared to " be an attempt at the very

last minute to basically ambush Ms. Curtis" with witnesses who had not previously been disclosed
and who she       had   not       had   an   opportunity to depose. I RP         at      24. Therefore, with the exception of


one rebuttal witness, the trial court did not allow Hansen's undisclosed witnesses to testify.

         The primary issues at trial were Jessica' s facilitation of Skype visitation and contact with

C. H., the length and duration of Hansen' s visitation with C. H. in Washington or Italy, and payment

of medical, education, and care expenses.




                                                                       M
46217 -6 -II



          At trial,    considerable       testimony    revolved around         Jessica'   s mental   health issues. Perlman


testified that when she initially prepared her guardian ad litem report, she was unaware of the full

extent of Jessica' s mental health history and Jessica' s contacts with law enforcement as a result of

mental illness. The testimony established that Hansen and Jessica did not fully disclose to Perlman

some    incidents      related   to Jessica' s mental illness.          Curtis testified that she did not become aware


of t-he full extent of Jessica' s mental health history and Jessica' s contacts with law enforcement

until she and her attorney investigated.

          Jessica testified       at   trial.   She admitted to purposefully deleting the logs of C. H.' s Skype

visitation     with    Hansen     and    that   visitation   did   not    occur   every     Saturday   as   ordered.       She also


testified that she did not disclose her full mental health history to Perlman or Curtis.

          Hansen' s testimony established that he knew Jessica had been hospitalized due to mental

illness, but he did not disclose at least two of Jessica' s hospitalization to Curtis. He also testified

that C.H. would still visit Jessica even if Hansen was unavailable for Skype visitation, but claimed

 at   the time ...     the court       order was   that [ Jessica] was      allowed visitation."       III RP at 427.


          Some of Hansen' s cross- examination of witnesses revolved around Jessica' s mental health

history    and   her    contact with       C. H.   During his closing argument, Hansen urged the trial court to

continue to allow Jessica to facilitate his Skype visitation with C. H.

          At the close of trial, Curtis requested attorney fees based on Hansen' s bad faith and

intransigence.         Curtis asserted that she incurred at least $ 5, 000 in attorney fees as a result of the

trial. Curtis argued,


          And then in      regards       to the attorney     fees ...     based off of the findings that this court
          made, given the fact that there were significant issues regarding Mr. Hansen' s
           disclosure     or   lack thereof, regarding issues            with [ Jessica],   given [ Jessica' s] lack of

           disclosure regarding her mental health issues, I think it needlessly increased the
           costs   that   were associated with          this   case....        I think had this information been
           known to the        court prior,     I don' t think this       would   have been    an   issue   at   trial.   But




                                                                    5
46217 -6 -II



             because of their lack of forthrightness, this is an issue that had to be litigated heavily
             and was the primary issue for litigation.

              H] e      chose    to fire his             He was aware of what this entailed. And because
                                               counsel....

              of      this,   [ Curtis] has incurred a significant amount of funds or fees that she never
              should have incurred.


RP ( Mar. 20, 20104) at 29- 30. 3

              In its      oral    ruling, the trial      court    expressed       its belief that Hansen " actively worked to


withhold"              Jessica' s mental health issues from Curtis, litigated inappropriate issues such as

grandparent              visitation,       actively     concealed       what    Hansen'   s   Skype   visits   with   C. H.    entailed,




inappropriately requested a continuance, and subpoenaed professionals late for trial. RP ( Mar. 20,
2014)        at   9. The trial          court also noted    that the     case " should :..    and could have settled" given that


                                                            to Curtis'                            RP ( Mar. 20, 2014)     at   34.   The
                               ruling is very
the trial                                        similar                   s             offer.
                  court' s                                                     ongoing


trial   court conveyed              its belief that, based       on "   the very limited issues [ Hansen] ...     had, which were


summer visits and                 Skype     visits and child support,"          the trial should have taken only half a day. RP

 Mar. 20, 2014) at 34. The trial court found that " because of [Hansen' s] actions, it is appropriate

        to    order      that [ Hansen]        contribute—       not pay all, but contribute to the costs of Ms. Curtis' [s]

attorney'         s   fees [   sic]."    RP ( Mar. 20, 2014) at 34.




3 At a hearing held prior to the trial court' s entry of final orders, the trial court referenced a fee
affidavit submitted by Curtis' s attorney, but the fee affidavit is not contained in the record on
appeal.           See RP ( Apr. 2, 2014)           at   21 ("   And I have reviewed the affidavit in support of your fees.
The fees are well above what I had indicated earlier I would be willing to order if there were
support in the record. You submitted that support, and I' m going to sign off on the request for fees
as I earlier ordered.").




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46217 -6 -II



          The trial court entered findings of fact and conclusions of law, a final order of child support,

and parenting plan. It discontinued Jessica' s supervision of C.H.' s Skype visits with Hansen and
ordered    that Curtis       supervise   the visits.    The trial court ordered Hansen to pay Curtis' s attorney

fees in the total amount of $5, 560. Hansen appeals only $5, 000 of the attorney fee award.

                                                          ANALYSIS


I.        STANDARD OF REVIEW


          A trial court has discretion to award attorney fees based on a party's intransigence. In re

                                                      30, 144 P. 3d 306 ( 2006).    We review a trial court' s award
Marriage of Bobbitt, 135 Wn.                App. 8,

of attorney fees based on a party's intransigence for an abuse of discretion. Bobbitt, 135 Wn. App.
at   29- 30.    Trial courts must exercise their discretion on articulable grounds, making an adequate

record so the appellate court can review a fee award. In re Marriage ofSwaka, 179 Wn. App. 549,

558, 319 P. 3d 69 ( 2014).          The party challenging the decision must demonstrate that the trial court

exercised      its discretion in    a manner     that was "` clearly   untenable or   manifestly   unreasonable. "'   In


re   Marriage of Crosetto, 82 Wn.             App.     545, 563, 918 P. 2d 954 ( 1996) (   quoting In re Marriage of

Knight, 75 Wn. App. 721, 729, 880 P. 2d 71 ( 1994)).                   We review challenged findings of fact for

substantial evidence, which is evidence " sufficient to persuade a rational, fair-minded person of

the truth      of   the   finding." In re Estate ofJones, 152 Wn.2d 1, 8, 93 P. 3d 147 ( 2004).

          The trial court entered no written findings to support its award of attorney fees to Curtis.

But the trial court made findings regarding attorney fees in its oral ruling on March 20, 2014.

Where the trial           court enters no   findings   on a particular matter, "[   we] may look to the oral opinion




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46217 -6 -II



to determine the          basis for the trial   court' s resolution of       the issue."'   In re Marriage of Griffin, 114

Wn.2d 772, 777, 791 P. 2d 519 ( 1990).


             A court has discretion to award attorney fees when one parent's intransigence causes the

other parent       to incur     additional   legal    services, regardless of      financial   abilities.   In re Marriage of

Greenlee, 65 Wn.            App.   703, 708, 829 P. 2d 1120 ( 1992).              In general, trial courts must segregate


fees caused by intransigence from those fees incurred for other reasons. Crosetto, 82 Wn. App. at
565.        But when a party's intransigence " permeate[ s] the entire proceedings, the court need not

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



Marriage ofBurrill, 113 Wn. App. 863, 873, 56 P. 3d 993 ( 2002).

II.          THE TRIAL COURT ABUSED ITS DISCRETION

             A.      Intransigence


                     A court may award one party attorney fees based on the other party's
             intransigence if the other party engages in foot -dragging and obstruction. The party
             requesting fees for intransigence must show the other party acted in a way that made
             trial more difficult and increased legal costs, like repeatedly filing unnecessary
             motions or forcing court hearings for matters that should have been handled without
             litigation.


In     re   Marriage of Pennamen,               135 Wn.      App. 790,        807, 146 P. 3d 466 ( 2006).          Generally,

intransigence occurs where a party engaged in foot -dragging and obstruction, filed unnecessary or

frivolous motions, refused to cooperate with the opposing party, refused to comply with discovery

requests, or engaged in any other conduct that made the proceeding unduly difficult or costly.

Greenlee, 65 Wn. App. at 708; Chapman v. Perera, 41 Wn. App. 444, 456, 704 P. 2d 1224 ( 1985);




 4
      Curtis   moved      to   remand     for entry   of written     findings.     Our commissioner denied the motion
 because "[ t] he     oral     findings   are sufficient    for   review."    Commissioner' s Ruling (Aug. 15, 2014) at
 1.




                                                                     N.
46217 -6 -II



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

Wm     App.      839, 846, 930 P. 2d 929 ( 1997);   Crosetto, 82 Wn. App. at 564.

            B.       Hansen Was Not Intransigents


            Although the record demonstrates that Hansen did not fully cooperate with Curtis

throughout litigation, we cannot discern any specific facts in the record to support a finding that

Hansen was intransigent. The evidence presented at trial established that Hansen. and Jessica did

not fully disclose to Perlman, Curtis, or the trial court incidents in which Jessica threatened or
attempted suicide, or harmed herself. However, the record does not demonstrate that any party

ever requested such information from Hansen, either informally or through discovery requests.

Nor is there anything in the record to show Hansen refused to comply with discovery requests.
While Hansen did not disclose at least two of Jessica' s hospitalizations to Curtis, the record does

not demonstrate that Curtis requested such information from Hansen or that he had an obligation

to disclose this information.6

            There is nothing in the record to show Hansen engaged in foot -dragging and obstruction,

filed unnecessary or frivolous motions,7 refused to cooperate with the opposing party, or refused
to comply         with   discovery   requests.   The record is also silent to Hansen engaging in any other

conduct that made the proceeding unduly difficult or costly. The record does not demonstrate that

Hansen' s failure to disclose and properly subpoena witnesses resulted in increased litigation or


s As a preliminary matter, Curtis argues that we should not consider Hansen' s argument on appeal
due to lack            by citation to authority. We disagree. Hansen' s brief contains reasoned
                   of support

argument that is supported by sufficient citation to authority to warrant review; therefore, we reach
the merits of his arguments. RAP 10. 3( a)( 6).

6 Curtis does not argue that Hansen had an independent obligation to provide this information.

 7 The trial court awarded fees to Curtis for Hansen' s unsuccessful motion to continue; however,
neither party appealed this ruling nor is it before us for consideration.

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46217 -6 -II



costs   to Curtis.     The issues surrounding Jessica' s supervision of Hansen' s Skype sessions with

C.H. were heavily litigated both prior to and during trial, but the record does not demonstrate that

Hansen' s actions surrounding this issue resulted in increased litigation. Nor does it demonstrate

that Hansen' s focus on the Skype sessions during the trial resulted in increased litigation because

Curtis   also presented extensive evidence on              the issue.    Because no specific facts in the record


support a finding of Hansen' s intransigence, the trial court abused its discretion in so finding.
           C.         Attorney Fees for Intransigence

          Although we hold that the record does not support a finding of intransigence, even if it did,

the trial court' s oral ruling was vague as to how Hansen' s conduct formed the basis for its attorney
fees    award.      The trial court had already awarded Curtis attorney fees incurred as a result of its

finding that Hansen brought his motion to continue the trial in bad faith. The trial court precluded

Hansen from calling his undisclosed witnesses at trial. The trial court expressed its belief that the

trial should have only taken about half a day, but both parties presented significant evidence.

          Finally, the trial court' s ruling that Curtis' s final settlement offer was very similar to the

final orders entered by the trial court cannot be a basis of fees where the record shows that both
Hansen        and   Curtis previously   refused   to   settle.    Hansen simply asserted his right to go to trial,

which    is   not a   basis for intransigence. See} Greenlee, 65 Wn.          App.   at   708. The trial court did not



segregate fees caused by intransigence from those fees incurred for other reasons, and we cannot

hold that any intransigence         permeated      the    proceedings.      Therefore, the trial court abused its


discretion in finding that Hansen was intransigent and by not segregating fees caused by

intransigence so we can more closely examine them.




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46217 -6 -II



III.         ATTORNEY FtES ON APPEAL


             Hansen does not request attorney fees on appeal. Curtis requests attorney fees. Curtis first

requests      attorney fees based         on   Hansen'   s   intransigence in the trial      court. "[   A] party' s intransigence

in the trial court can also support an award of attorney fees on appeal. ,8 In re Marriage ofMattson,

95 Wn. App. 592, 606, 976 P. 2d 157 ( 1999).                      Because the record does not demonstrate that Hansen


was intransigent, Curtis is not entitled to attorney fees on appeal based on Hansen' s intransigence

in the trial court.


             Curtis next requests attorney fees pursuant to RAP 18. 1( a) and RCW 26. 26. 140, the

Uniform Parentage Act (UPA).                     We may award attorney fees on appeal if "allowed by statute, rule,

or contract and      the   request    is   made pursuant          to RAP 18. 1(      a)."   Malted Mousse, Inc. v. Steinmetz,


150 Wn.2d 518, 535, 79 P. 3d 1154 ( 2003). RCW 26.26. 140 governs attorney fees requested in

actions that arise under the UPA. See In re Marriage of T., 68 Wn. App. 329, 334, 842 P. 2d 1010

    1993).    RCW 26. 26. 140        provides         that "[   t]he court may order that all or a portion of a party' s

reasonable       attorney'   s   fees [   sic]   be   paid   by   another   party" and does not require consideration of


need or ability to pay in making an award.9 In re Marriage ofM.,92 Wn. App. 430, 441, 962 P. 2d
130 ( 1998).      But because Curtis is not the prevailing party on appeal, we hold that she is not entitled

to attorney fees on appeal.




8
    Hansen      opposes    Curtis'   s request        for attorney fees.      He invites us to overrule Mattson, arguing
that " Mattson has grossly            mis- read       the two cases it   Reply Br. of Appellant at
                                                                            cites"    as support.

 13.Because insufficient facts support the trial court' s conclusion that Hansen was intransigent,
Mattson is inapplicable and we need not reach the merits of Hansen' s argument.

 9 Both parties submitted financial affidavits that we need not consider.


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46217 -6 -II



        We vacate the trial court' s award of attorney fees based on intransigence.

        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 2. 06. 040,

it is so ordered.



                                                                     a




                                                             Melnick,    J.

We concur:




  0W       orswick,   J.
                           C/

        Johanson, C. J.                k—.




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