       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In re the Parentage of W.J.M.,                      No. 79177-0-I

                       Child,                        DIVISION ONE

               v.                                    UNPUBLISHED OPINION

 DAPHNE CHUA,

                       Respondent,

 TYLER MCGRUE,

                       Appellant.

       LEACH, J. — Tyler McGrue appeals the court’s June 3, 2018 order awarding

attorney fees, costs, and transportation expenses, and the court’s order clarifying

the June 3, 2018 order. He contends the record does not support the court’s

findings that he had the ability to pay attorney fees and costs, that he was

responsible for Daphne Spence’s transportation expenses that she might have

otherwise avoided, and that he acted in contempt of the trial court’s order of April

20, 2018. He also contends the court abused its discretion in determining the

attorney fees were reasonable and allowing certain litigation costs to be included

in the award. Because we agree that the court’s findings are insufficient and not

supported by substantial evidence, and that the court abused its discretion, we

reverse the orders awarding attorney fees, costs, and transportation expenses and

remand for further proceedings.

  Citations and pincites are based on the Westlaw online version of the cited material.
No. 79177-0-I/2


                                      FACTS

      Tyler McGrue and Daphne Spence1 have one child together, W.J.M. The

couple never married, and in June 2016, they entered into a parenting plan. Under

the terms of the plan, Spence moved to Monterey, California and W.J.M. lived with

her most of the time. The child stayed with McGrue for two weeks, every three

months up to two three-night periods a month, in California and for holidays every

other year. The visitation plan was scheduled to change when W.J.M. began

attending school in the autumn of 2018. McGrue would have W.J.M. for spring

break, mid-winter break, alternating winter breaks, and four weeks during the

summer increasing to six weeks when W.J.M. entered third grade. McGrue and

Spence had joint responsibility for major decisions such as education and non-

emergency health care. In the event of disagreements, the plan required the

parties to engage in mediation before raising the issue in court.

      In the autumn of 2017, Spence learned that her husband, who serves in the

military, would be transferred and permanently stationed in Okinawa, Japan in the

spring or summer of 2018, although the written orders had not been issued. Before

Spence and W.J.M. could move to Japan, Spence needed court orders authorizing

the relocation, modification of the parenting plan, and a passport for W.J.M. In

October 2017, Spence asked McGrue to sign a consent form2 showing he agreed



      1
         Daphne Chua is now Daphne Spence. We use her current surname in
this opinion.
       2
         Federal regulations require both parents to execute a passport application
on behalf of a minor under age 16 with some exceptions. 22 C.F.R. § 51.28(a)(2).
One parent may obtain a passport for a child by submitting a notarized statement
of consent from the other parent. This can be done with a DS-3053 form though
use of the form is not required. 22 C.F.R. § 51.28(a)(3)(i).
                                         2
No. 79177-0-I/3


to the issuance of a passport for W.J.M. McGrue wanted to reach an agreement

with Spence on modifications to travel and visitation in the parenting plan, and said

he would sign both documents, an amended parenting plan, and the consent form

at the same time. Spence was unwilling at that time to discuss and agree on

changes to the parenting plan that would not take effect until sometime the

following year. The parties reached an impasse.

       In January 2018, Spence’s husband received official orders transferring him

to Okinawa on May 15, 2018. She and her husband planned to move at the end

of April. McGrue and Spence apparently discussed some modifications to the

parenting plan in early January but did not reach an agreement on everything. On

February 15, 2018, Spence filed a Notice of Intent to Move with Children and a

proposed parenting plan.3 Spence also filed an ex parte motion, set for February

16, requesting an order requiring McGrue to sign a DS-3053 consent form

(passport motion). The court denied the motion explaining that Spence should

“note a motion before the trial judge under LCR 7.”4

       Nearly a month later, on March 14, 2018, the case had not been assigned

to a trial judge, so Spence filed a motion to modify the parenting plan,5 a motion




       3
          Spence did not mail copies of the relocation notice and the proposed
parenting plan to McGrue and his counsel until February 28, 2018. McGrue stated
he received them on March 2, 2018. He filed an objection on March 30.
        4
           McGrue requested an award for attorney fees, which the court reserved
for the trial judge.
        5
          Spence later explained that she filed the petition to modify the parenting
plan to “trigger a case schedule and have a trial judge assigned.” She did not
intend to pursue the petition to modify, but she did not dismiss the petition until
shortly before the hearing on April 20, 2018 and well after McGrue had filed a
response.
                                         3
No. 79177-0-I/4


for adequate cause, and a motion for a temporary order authorizing relocation.

The case was assigned to a judge the same day. The following day, at Spence’s

request, the court scheduled the passport motion for a hearing on April 6, but it did

so without waiting for a response from McGrue’s attorney who was not available

from April 6th to April 16th.      Despite McGrue’s submission of a notice of

unavailability, and his request to reschedule, Spence did not change the hearing

date. On March 30, 2018, McGrue filed a motion to continue. He also filed

responses to Spence’s motions and submitted his own proposed parenting plan.

       Instead of responding to McGrue’s motion to continue, Spence filed a notice

of disqualification of the judge. After the case was reassigned, Spence filed a new

passport motion and noted it for hearing on April 20, 2018. She also asked McGrue

to agree to mediation as soon as possible with a mediator of McGrue’s choice.

McGrue did not respond.

       At the hearing on April 20, 2018, the court ordered the parties to

immediately engage a mediator to help them resolve their disputes over changes

to the parenting plan and to return to court on April 26, 2018. The parties attended

mediation on April 23, 2018 and reached an agreement. The court also granted

Spence’s passport motion ordering McGrue to provide the signed consent form no

later than noon on April 23, 2018. McGrue complied.6 Nonetheless, when Spence

traveled to San Francisco to get the passport on April 25, the State Department



       6
        At the follow-up hearing on April 26, 2018, Spence claimed that McGrue
had sent only one original signed and notarized release when in fact she needed
two such originals. But, Spence’s email forwarding McGrue the consent form
included just one form, and it specifically referred to only “the original” to which he
needed to return.
                                          4
No. 79177-0-I/5


advised her McGrue had placed a “hold” that prevented the Department from

issuing a passport.7 At the April 26 hearing, McGrue said he had forgotten about

placing the hold months earlier. He then lifted it so Spence was able to obtain the

passport for W.J.M. that day.8 As a result of McGrue’s failure to remember and

remove the hold, Spence and her family made a second trip to San Francisco just

days before the move to Japan incurring significant expenses obtaining the

passport.

      At the hearing on April 26, Spence orally moved for an order directing

McGrue to reimburse her for the cost of the second trip and for any “expedited

overnight fees” she incurred to have the passport delivered to her home in

Monterey. The court did not address Spence’s request that day. Spence filed a

motion in May requesting an award of “attorneys’ fees and travel expenses for

[McGrue’s] failure to comply” with the court’s order of April 20, 2018. In her

declaration, however, Spence stated she was requesting $5,000 in attorney fees

“for having to litigate this matter at all.” McGrue objected and requested the court

award him fees and costs he incurred in responding to Spence’s initial ex parte




      7
         Though the record is not completely clear, it is likely the “hold” to which
the parties referred to was placed through the Children’s Passport Issuance Alert
Program (CPIAP), which authorizes the State Department to contact a parent who
requests to verify whether he or she has consented to issuance of a passport for
the named child. A parent may also lodge an objection to the issuance of a
passport through CPIAP, although the State Department advises parents that
under the circumstances prescribed in 22 C.F.R. § 51.28, the State Department
may issue a passport despite the objection. 22 C.F.R. § 51.28(c).
       8
         The court directed the parties to return to court, in the afternoon on
April 26, to report whether the hold on the passport had been lifted. McGrue
appeared for the hearing but Spence did not.
                                         5
No. 79177-0-I/6


passport motion and her motion for fees and travel expenses. On June 3, 2018,

the court issued an order granting Spence’s motion:

      “The attorney’s fees are reasonable; the respondent has the ability
      to pay. The transportation cost of $718.73 are also awarded, but for
      Mr. McGrue's contempt of this court's April 20, 2018 order. The costs
      would not have been incurred for the futile act, travel because as a
      result of the respondent’s failure to release the State Department
      hold.”

      The court held a status conference on July 30, 2018. McGrue appeared

through counsel, but Spence did not appear. McGrue advised the court that a

notice of settlement would be filed.     In early September, the parties filed a

stipulation and order of dismissal, an agreed final order on the objection to

relocation, and an agreed amended parenting plan.

      In October, Spence moved for clarification of the court’s award of fees and

expenses, noting that while the order indicated the motion for attorney fees was

granted, it did not state specifically the amount of fees awarded.9       McGrue

responded that the order did not state a sum certain in attorney fees and that it

was unclear whether the court intended to order him to pay fees for his failure to

remove the hold on the passport or for the entire case. He also objected to the

court’s findings that he had the ability to pay and that he had acted in “contempt”

of the court’s order. On October 30, 2018, the court issued an order clarifying its

June 3 order as follows: “[McGrue] shall pay attorney’s fees to [Spence] in the

amount of $5,000. It is further ordered, adjuged [sic] and decreed Attorney’s fees

of $5,000.00 is awarded.” McGrue appeals.



      9
       Spence attested that McGrue had paid only the $718.73 in transportation
expenses, which was an amount specified in the court’s order.
                                        6
No. 79177-0-I/7


                                     ANALYSIS

       McGrue contends the court erred in finding that he had the ability to pay

attorney fees, costs, and transportation expenses, that he was responsible for

Spence incurring transportation expenses that she may have otherwise avoided,

and that he acted in contempt of the Court’s order of April 20, 2018. He further

contends the court abused its discretion in determining the attorney fees requested

were reasonable and the included litigation costs in the award.

       Generally, a court will not award attorney fees and costs of litigation unless

authorized by contract, statute, or recognized ground of equity.10 We apply a two

part test in reviewing orders involving attorney fees: (1) we review de novo whether

there is a legal basis for awarding attorney fees and (2) we review a discretionary

decision to award or deny fees and the reasonableness of any attorney fee award

for an abuse of discretion.11 We review the trial court’s findings of fact to determine

if they are supported by substantial evidence, and if so, whether the findings

support the conclusions of law.12

       In a proceeding brought under chapter RCW 26.09, attorney fees may be

awarded on a statutory basis pursuant to RCW 26.09.140 or on the equitable basis

that that additional fees were caused by one party’s intransigence. 13 The court’s

order awarding fees in this matter is ambiguous in that it suggests the fee award




       10
          Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).
       11
          Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).
       12
          Wixom v. Wixom, 190 Wn. App. 719, 724, 360 P.3d 960 (2015).
       13
          Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969).
                                          7
No. 79177-0-I/8


could be based on either the statute or a finding of intransigence. 14 Because it is

unclear whether the court relied on a statutory or an equitable ground, we address

both.

A.      Attorney Fees Awarded Based on Statute

        The trial court has discretion to award reasonable attorney fees under

RCW 26.09.140 after considering the financial resources of both parties. 15 The

party challenging the award bears the burden of proving that the trial court

exercised its discretion in a way that was clearly untenable or manifestly

unreasonable.16 A court’s decision is manifestly unreasonable if it is outside the

range of acceptable choices given the facts and the controlling legal standard; it is

based on untenable grounds if the factual findings are unsupported by the record;

and the decision is based on untenable reasons if it applies an incorrect standard

or the facts fail to meet the requirements of the correct standard.17




        14
          The court’s finding that McGrue “has the ability to pay” suggests that the
court may have based its award on RCW 26.09.140, which requires the court to
consider the financial resources of the parties. But, the court’s finding that “but for
Mr. McGrue's contempt of this court's April 20, 2018 order, Spence would not have
incurred additional expenses” suggests that the court may have based it’s finding
on intransigence.
       15
          In re Marriage of Ayyad, 110 Wn. App. 462, 473, 38 P.3d 1033 (2002).
       16
          In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71, 75-6
(1994) (citing Abel v. Abel, 47 Wn.2d 816, 819, 289 P.2d 724 (1955).
       17
          In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
                                          8
No. 79177-0-I/9


       “To withstand appeal, a fee award must be accompanied by findings of fact

and conclusions of law to establish a record adequate for review.” 18 In addition,

the trial court must state on the record the method it used to calculate the award.19

       In considering the financial resources of both parties, the court must

consider both the financial need of the spouse seeking fees and the ability of the

other spouse to pay.20 The absence of findings as to either need or ability to pay

requires reversal.21 When calculating the fee award, the court should consider:

(1) the factual and legal questions involved; (2) the time necessary for preparation

and presentation of the case; and (3) the amount and character of the property

involved.22

       McGrue challenges the court’s award of fees and costs based on

RCW 26.09.140. He contends the court erred in finding that he had the ability to

pay fees and costs and that the court abused its discretion by determining the

attorney fees Spence requested were reasonable and by including certain costs in

the award. We agree.

       The court made a single factual finding to support that balancing of

McGrue’s ability to pay against Spence’s financial need. It found McGrue had the

ability to pay. This finding is unsupported by any evidence in the record. Neither

party submitted financial statements or declarations concerning their financial



       18
          In re Marriage of Laidlaw, 2 Wn. App. 2d 381, 392, 409 P.3d 1184
(2018) (quoting Eagle Point Condo. Owners Ass’n v. Coy, 102 Wn. App. 697,
715, 9 P.3d 898 (2000).
       19
          Marriage of Knight, 75 Wn. App. at 730.
       20
          In re Marriage of Nelson, 62 Wn. App. 515, 521, 814 P.2d 1208 (1991).
       21
          In re Marriage of Steadman, 63 Wn. App. 523, 529, 821 P.2d 59 (1991).
       22
          Abel, 47 Wn.2d at 819.
                                         9
No. 79177-0-I/10


condition. Neither party testified at a hearing regarding their financial need or

ability to pay.   If the trial court based its award on the authority granted by

RCW 26.09.140, the record does not permit any meaningful review and must be

reversed.

       Nor is the court’s conclusion that $5,000 is a reasonable amount of attorney

fees for this relocation matter supported by the record. Spence entered into a flat

rate fee agreement of $5,000 plus costs. The billing record submitted to the trial

court reflects hours worked by counsel and staff except for attorney Jason

Benjamin. The billing statement appears to document charges for time worked by

two lawyers and three staff members, as well as charges for costs, such as filing

fees and copying expenses. Spence’s counsel, in an affidavit accompanying the

billing statement, stated that if Spence had been billed on an hourly basis, she

would have incurred fees through May 15, 2018 of $6,336.50.

       The billing statement includes items that may not be recovered in a fee

award. Costs are narrowly defined in RCW 4.84.010 to include expenses for filing,

witness fees, and service of process.23 Photocopying is not authorized as a cost

that may be awarded to an opposing party.24

       In addition to cost items that should be excluded from the fee award, fees

for non-lawyer staff are not recoverable unless the services meet the criteria of




       23
         Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 66, 738 P.2d 665 (1987).
       24
         In re Marriage of Van Camp, 82 Wn. App. 339, 343, 918 P.2d 509
(1996); Austin v. U.S. Bank of Washington, 73 Wn. App. 293, 310, 869 P.2d 404,
414 (1994).
                                        10
No. 79177-0-I/11


Absher Const. Co. v. Kent School Dist. No. 415.25 Nor may fees be awarded for

time spent on duplicative work, unsuccessful claims, or unnecessary or

unproductive activities.26 The billing statement includes a charge for 1.3 hours of

attorney time for “travel to and from court house; drop off affidavit of prejudice,” at

a rate of $310 per hour. Fees for work which does not require legal training, such

as delivering documents, are not recoverable.

B.     Attorney Fees Awarded Based on Intransigence

       A trial court may also consider whether additional legal fees were caused

by one party’s intransigence and award attorney’s fees on that basis. 27 “When

intransigence is established, the financial resources of the spouse seeking the

award are irrelevant.”28 Intransigence includes “foot-dragging” and obstruction,

filing repeated unnecessary motions, and conduct that makes the trial unduly




       25
          79 Wn. App. 841, 845, 917 P.2d 1086 (1995). The Court adopted the
following criteria for determining whether the services of non-lawyer personnel may
be recoverable as part of an attorney fee award: “(1) the services performed by the
non-lawyer personnel must be legal in nature; (2) the performance of these
services must be supervised by an attorney; (3) the qualifications of the person
performing the services must be specified in the request for fees in sufficient detail
to demonstrate that the person is qualified by virtue of education, training, or work
experience to perform substantive legal work; (4) the nature of the services
performed must be specified in the request for fees in order to allow the reviewing
court to determine that the services performed were legal rather than clerical; (5)
as with attorney time, the amount of time expended must be set forth and must be
reasonable; and (6) the amount charged must reflect reasonable community
standards for charges by that category of personnel.”
       26
          Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665, 682
(1987); Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208, 212
(1987); Van Camp, 82 Wn. App. at 342; Absher Constr., 79 Wn. App. at 847.
       27
          In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120
(1992).
       28
          In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989).
                                          11
No. 79177-0-I/12


difficult and costly.29   Where a party’s intransigence permeates the entire

proceedings, the court need not segregate fees that were incurred as a result of

intransigence from those that were not. 30 Otherwise, only the fees incurred as a

result of the other party’s intransigence should be awarded.31

       Although the court did not make a specific finding that McGrue was

intransigent, it did find that he acted in “contempt” of the court’s April 20, 2018

order. Spence’s travel expenses for the second trip to San Francisco “would not

have been incurred” if McGrue had released the hold preventing the State

Department from issuing a passport to W.J.M. McGrue contends the court erred

in making these findings.32

       McGrue contends that the court failed to consider that Spence failed to

request two signed and notarized copies of the passport consent form for which

she said she needed to obtain the passport for W.J.M. in San Francisco. The

record supports McGrue’s contention that he was asked to return just one signed

and notarized consent form. There is no evidence that he was asked to print and

sign two of the forms. However, Spence clarified in her declaration of May 24,

2018 that she did not need the second copy of the consent form to obtain the tourist

passport in San Francisco. She needed it to obtain the government passport for



       29
          Greenlee, 65 Wn. App. at 708.
       30
          Burrill v. Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002).
       31
          In re Marriage of Crosetto, 82 Wn. App. 545, 565, 918 P.2d 954 (1996).
       32
          We reject McGrue’s argument that the trial court found him “sua sponte”
in contempt without proper notice and a hearing. We do not read the trial court’s
order as finding McGrue in contempt as the term is used in RCW 7.21.010 or RCW
26.09.160. The court did not cite to any legal authority for such a finding, nor did
Spence argue for such a finding. Instead, the court used the term “contempt” in
the ordinary sense of being disobedient, disrespectful, or scornful.
                                        12
No. 79177-0-I/13


which she was able to get elsewhere. Thus, Spence’s failure to request two signed

and notarized consent forms following the April 20 hearing is not a reason why she

had to make a second trip to San Francisco.

       McGrue also argues that the court failed to consider Spence could have

defeated the hold he had put in place by presenting the court’s order authorizing

her to obtain a passport for W.J.M. McGrue relies on 22 C.F.R. § 51.28(a)(3)(E),

which provides that a passport application may be executed for a minor by only

one parent if the parent provides a court order “specifically authorizing the applying

parent or legal guardian to obtain a passport for the minor, regardless of custodial

arrangements.” We disagree with McGrue’s assertion that under this regulation a

court order will suffice to obtain a passport regardless of any hold the other parent

has placed. The court’s order did not authorize Spence to obtain a passport for

W.J.M. “regardless of custodial arrangements”. It gave her permission to obtain a

passport for W.J.M. and it required McGrue to sign the appropriate consent form.

To the extent the court concluded, but for the hold McGrue forgot he had placed,

Spence could have obtained the passport on her first trip to San Francisco. The

court did not abuse its discretion.

       Spence contends that McGrue acted in “bad faith” and was intransigent “at

every stage of the proceedings,” justifying an award for all of her attorney fees and

costs. We decline to affirm on this basis both because the court did not enter

findings and conclusions to support such an award, and because there is not

substantial evidence in the record to support such a finding. Spence contends, for

example, that this matter would not have been litigated at all but for McGrue’s



                                         13
No. 79177-0-I/14


intransigence. In October 2017, however, McGrue wanted to reach an agreement

with Spence on changes to the parenting plan before signing the consent form for

the passport. It was Spence who refused to work out an agreement on how they

would change the visitation and travel arrangements and not McGrue.

      Further, it was Spence, not McGrue who chose to litigate the matter rather

than submit the disagreement to mediation as required by the parenting plan.

Spence claims she tried to pursue mediation, but the only evidence is an email

message in early April 2018 requesting that McGrue agree to a mediation date.

      Spence contends that McGrue’s opposition to consenting to the passport

was egregious because he did not object to her relocating with W.J.M. to Japan.

We disagree. Relocation involves more than moving to the new location. The

statute contemplates that the parent who is not relocating may object to proposed

changes in the residential aspects of the parenting plan.33 The adjustments to the

visitation schedule and travel arrangements were precisely what was at issue for

McGrue in this case. The trial court recognized that Spence’s insistence that

McGrue consent to the passport was “putting the cart before the horse until the

court” determined whether temporary relocation was appropriate.

      In a similar vein, Spence asserts that because the parenting plan the parties

ultimately agreed to provide McGrue with essentially the same amount of

residential time with W.J.M. as the parenting plan in place before Spence

relocated, the litigation was for nothing. This reasoning ignores the parenting plan

amendments Spence proposed when she filed the notice of relocation, which



      33
           RCW 26.09.260(6).
                                        14
No. 79177-0-I/15


would have made several significant changes that were disadvantageous to

McGrue.34 The parenting plan changes what the parties ultimately agreed to in

mediation however McGrue avoided these disadvantageous changes.35 Contrary

to Spence’s assertion, McGrue sought to protect legitimate interests.

       Spence contends that McGrue is responsible for the pace of the

proceedings and delays that threatened to interfere with Spence’s relocation

arrangements. Other than the issue with the hold McGrue had placed on the

passport, the record does not support Spence’s contention. The initial delay in the

proceedings occurred when Spence noted the passport motion for an ex parte

hearing. The judge denied the motion and explained that Spence should note the

motion for a hearing before the judge assigned to hear the relocation motion.

Spence has repeatedly asserted that RCW 26.09.480 authorized filing the

passport motion ex parte. Spence misapprehends the statute. It authorizes the

person relocating to obtain an order ex parte allowing relocation during the period

in which the other party may file an objection to the motion to relocate.36 The only



       34
          Among the changes Spence proposed were: (a) permitting McGrue two
weekend visits with W.J.M. in Japan per month provided that he pay 100 percent
of the travel expenses; (b) requiring that McGrue accompany W.J.M. from both
Spence’s place of residence and returning to Spence’s place of residence for all
of W.J.M.’s visits with McGrue in the United States; (c) granting Spence sole
decision-making authority for major health care and education issues; and (d)
allowing Spence to relocate during her husband’s active duty military service, likely
every two years, without further court approval, without any changes to the
parenting plan, and without advance notice to McGrue.
       35
          The agreed parenting plan preserves joint decision-making, equally
divides the task of accompanying W.J.M. on trips to and from the United States,
and omits the language allowing Spence to relocate without court approval. It also
provides McGrue the opportunity to have time with W.J.M. of up to 12 consecutive
nights, twice a year, and in Japan at his own expense.
       36
          RCW 26.09.480(2).
                                         15
No. 79177-0-I/16


order that may be obtained ex parte under the statute is an order authorizing

temporary relocation.37 The statute does not authorize a motion related to a

passport to be heard ex parte.

       Spence also contends she was forced to file a petition to modify the

parenting plan and a motion for adequate cause in mid-March because McGrue

“refused” to file an objection to the motion to relocate. First, there is no evidence

in the record that McGrue refused to file an objection.38 Second, LFLR 5(e)(6)

permits filing a motion to authorize temporary relocation before the chief family law

judge if a party does not have an assigned judge. Spence was therefore not forced

to file a petition to modify the parenting plan. In addition, Spence advised the court

on April 20, 2018 that she had dismissed the petition to modify because “it’s really

not necessary. We were just trying to expedite the process of getting a trial judge

…” She did not dismiss either the petition or the motion for adequate cause until

shortly before the hearing date and well after McGrue had filed a response.

McGrue was thus forced to incur fees responding to a petition that Spence never

intended to pursue.

       Some of Spence’s other actions may have increased the delays. After the

matter was assigned to a judge in mid-March, the court set a hearing on a date

when McGrue’s counsel was not available. Spence’s counsel declined to agree to



       37
          LFLR 5(b).
       38
          McGrue filed a timely objection to the motion to relocate. Spence did not
mail the notice of intent to relocate, and the proposed parenting plan, to McGrue’s
attorney until February 28, 2018, which was almost two weeks after she presented
the passport motion ex parte. McGrue received the notice on March 2, 2018 and
filed an objection on March 30. Thus, he did not refuse to respond, and he was
not intransigent about responding.
                                         16
No. 79177-0-I/17


a different hearing date, but then moved to disqualify the judge after McGrue

moved for a continuance. It is certainly possible that the parties could have

obtained an earlier hearing date had Spence filed the disqualification notice in mid-

March instead of waiting until McGrue filed a motion.

       As noted above, “to withstand appeal, a fee award must be accompanied

by findings of fact and conclusions of law to establish a record adequate for

review.” Here, the court’s findings and conclusions do not provide such a record.

To the extent McGrue was intransigent, it did not permeate the entire proceedings.

Only the fees that were incurred as a result of McGrue’s intransigence, if any, may

be awarded, and only after consideration of the appropriate factors, the

reasonableness of the fees, and the accuracy of the parties’ contentions.

C.     Attorney Fees on Appeal

       McGrue seeks an award of attorney fees on appeal. RAP 18.1 allows this

court to award attorney fees on appeal if applicable law provides for an award of

fees. Under RCW 26.09.140, on appeal, “the appellate court may, in its discretion,

order a party to pay for the cost to the other party of maintaining the appeal and

attorneys’ fees in addition to statutory costs.” Although McGrue is the substantially

prevailing party, he has not filed a financial declaration establishing his need. So,

we deny his request.




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                                  CONCLUSION

       We reverse the award of attorney fees and costs. We award McGrue

statutory costs on appeal.      We reverse and remand for further proceedings

consistent with this opinion.




WE CONCUR:




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