                                                                         FILED
                                                                      JULY 18, 2017
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

In the Matter of the Marriage of:                 )         No. 33430-9-111
                                                  )
JEFFREY K. NEWGARD,                               )
                                                  )
                        Respondent,               )
                                                  )
                v.                                )         UNPUBLISHED OPINION
                                                  )
PENNELOPY ANN NEWGARD,                            )
                                                  )
                        Appellant.                )

       LAWRENCE-BERREY, J. -          Pennelopy Newgard and Jeffrey Newgard's parenting

plan granted them joint decision-making authority over their children's nonemergency

health care. Pennelopy 1 began taking one child to psychotherapy and requested that

Jeffrey contribute his percentage of the costs pursuant to the child support order. Jeffrey

refused because he did not consent to the treatment: The trial court ruled that Jeffrey was

not required to pay his percentage of the child's psychotherapy costs incurred after he

expressed disagreement over the treatment to Pennelopy.



       1
           We will refer to the parties by their first names for ease and clarity.
No. 33430-9-III
In re Marriage of Newgard


       On appeal, Pennelopy argues that her violation of the joint decision-making

provision of the parenting plan does not excuse Jeffrey from his child support obligation.

The Washington State Supreme Court's recent decision of In re Marriage of Zandi, 187

Wn.2d 921,391 P.3d 429 (2017) confirms Pennelopy's argument. However, Zandi also

permits a trial court to consider whether bad faith or unreasonable conduct on the part of

a parent permits modification of the child support order. For this reason, we remand for

the trial court to consider its order in light of Zandi and to enter appropriate findings.

                                           FACTS

       The parties' September 2007 parenting plan grants Pennelopy primary residential

placement of their two children. Paragraph 4.2 of the plan grants the parties joint

decision-making authority over the children's "[n]on-emergency health care." Clerk's

Papers (CP) at 220. In June 2010, the trial court approved a new child support order.

Paragraph 3 .19 of the new order stated: "Both parents have an obligation to pay their

share of uninsured medical expenses. [Jeffrey] shall pay 69.3% of uninsured medical

expenses ... and [Pennelopy] shall pay 30.7% of uninsured medical expenses." CP at 7-

8.

       In early 2013, Pennelopy began taking one child to individual psychotherapy. In

December 2013, Pennelopy asked Jeffrey to contribute to the psychotherapy expenses.



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On February 4, 2014, Jeffrey responded by letter that he would not pay the expenses.

Citing paragraph 4.2 of the parenting plan, he explained, "I have at no time ever given

consent for psychotherapy." CP at 65. On January 20, 2015, Pennelopy filed a motion

for judgment for back medical bills.

         Pennelopy's motion was heard by Yakima County Superior Court Commissioner

Kevin Naught on February 18, 2015. Commissioner Naught ruled that Jeffrey was only

responsible for the psychotherapy bills "up and to the time that he actually put the wife on

notice that he did not agree with these expenses." CP at 112. On March 10, 2015,

Commissioner Naught's ruling was reduced to a written order. On March 19, 2015,

Pennelopy sought revision of Commissioner Naught's ruling on the grounds that her

violation of the parenting plan did not relieve Jeffrey from the terms of the child support

order.

         The Honorable Gayle Harthcock heard Pennelopy's motion for revision on

April 30, 2015. The trial court reasoned that requiring Jeffrey to pay his portion of the

child's counseling costs incurred after the February 4, 2014 letter "would be kind of an

absurd result ... because what that means is someone can go and get services, medical

services, for their child and rack up thousands and thousands of dollars without

notification to the other side and then expect that those bills be paid." Report of


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No. 33430-9-111
In re Marriage of Newgard


Proceedings (RP) at 5. The trial court denied Pennelopy's motion "because mother

violated the parenting plan's joint decision making provisions." 2 CP at 119.

       Pennelopy timely appealed.

                                STANDARD OF REVIEW

       "On a revision motion, a trial court reviews a commissioner's ruling de novo based

on the evidence and issues presented to the commissioner." In re Marriage of Williams,

156 Wn. App. 22, 27, 232 P.3d 573 (2010). The trial court's decision to accept or revise

the commissioner's decision then becomes the decision of the trial court. In re Parentage

of Hilborn, 114 Wn. App. 275,278, 58 P.3d 905 (2002). "When an appeal is taken from

an order denying revision of a court commissioner's decision, we review the superior

court's decision, not the commissioner's." Williams, 156 Wn. App. at 27. This court

"will uphold a trial court's decision regarding child support unless there was a manifest

abuse of discretion." In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157


       2
         The trial court's revision order corrected an error on the face of Commissioner
Naught's order, which is unrelated to this appeal. Commissioner Naught's written order
stated that Jeffrey was not responsible "for any of the medical bills incurred subsequent to
February 4, 2014." CP at 100 (emphasis added). The trial court's revision order stated
that "[t]he mother's motion for revision is granted only to correct the written order to
conform to the court's clear intention as expressed in the commissioner's oral ruling, as
follows: Petitioner is not required to pay his percentage of only psychotherapy bills
incurred after February 4, 2014 .... In all other respects, the motion for revision is
denied." CP at 119.

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No. 33430-9-III
In re Marriage of Newgard


( 1999). "A court necessarily abuses its discretion if its decision is based on an erroneous

view of the law." In re Marriage a/Scanlon, 109 Wn. App. 167, 174-75, 34 P.3d 877

(2001).

                                   ISSUE PRESENTED

       Whether a parent's violation of a joint medical decision-making parenting plan
provision excuses the other parent from paying his or her respective portion of the
expense pursuant to a child support order

                                        ANALYSIS

       Pennelopy argues that even if she did violate the joint medical decision-making

provision of the parenting plan, Jeffrey is responsible for his portion of the medical

expenses because "[a] parent's obligation under a child support order is unaffected by the

other parent's violation of a provision of the parenting plan." Br. of Appellant at 3-4.

Jeffrey responds that he is not responsible for health care costs incurred in violation of the

joint decision-making provision of the parenting plan as the child support order only

applies when the parenting plan is followed.

       There is no merit to Jeffrey's contention that his support obligation is conditioned

on Pennelopy obtaining his permission to incur health care costs for their child. A party's

failure to perform under a parenting plan does not excuse the other party's obligations

under a child support order. RCW 26.09.184(7) explicitly provides:


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       If a parent fails to comply with a provision of a parenting plan or a child
       support order, the other parent's obligations under the parenting plan or the
       child support order are not affected. Failure to comply with a provision in a
       parenting plan or a child support order may result in a finding of contempt
       of court, under RCW 26 .09 .160.

(Emphasis added); see also RCW 26.09 .160( 1) ("If a party fails to comply with a

provision of a decree or temporary order of injunction, the obligation of the other party to

make payments for support or maintenance or to permit contact with children is not

suspended."). '" If a statute is clear on its face, its meaning is to be derived from the

language of the statute alone."' Cerrillo v. Esparza, 158 Wn.2d 194,201, 142 P.3d 155

(2006) (quoting Kilian v. Atkinson, 147 Wn.2d 16, 20, 50 P.3d 638 (2002)).

       In general, Jeffrey is obligated to pay his portion of child support relating to his

children's reasonable and necessary health care costs. See RCW 26.19.080. Monthly

health care costs, including mental health treatment, "shall be shared by the parents in the

same proportion as the basic child support obligation." RCW 26.19.080(2); see also

RCW 26.09.105(9) ("Each parent is responsible for his or her proportionate share of

uninsured medical expenses for the child or children covered by the support order."). The

trial court "may exercise its discretion to determine the necessity for and the

reasonableness of all amounts ordered in excess of the basic child support obligation."

RCW 26.19.080(4). In general, if the applicable health care costs are reasonable and


                                              6
No. 33430-9-III
In re Marriage a/Newgard


necessary, the trial court has no discretion but to order payment pursuant to the parents'

proportionate share. In re Marriage o/Zandi, 190 Wn. App. 51, 55-56, 357 P.3d 65

(2015), aff'd, 187 Wn.2d 921. The exception to this rule is when modification of the

order is appropriate because of a substantial change of circumstances. In re Marriage of

Schumacher, 100 Wn. App. 208,213, 997 P.2d 399 (2000). The recent Supreme Court

decision of In re Marriage o/Zandi, 187 Wn.2d 921 illustrates this principle.

       In Zandi, the parties' daughter was visiting her maternal aunt near Cincinnati,

Ohio. Id. at 924. She began suffering pain from kidney stones. Id. The mother called

the father and advised him that their daughter needed surgery to dissolve the kidney

stones. Id. The father objected to surgery in Cincinnati because Cincinnati was not within

the medical insurer's network. Id. The father asked the mother to either wait to see if the

medical insurer would authorize out-of-network coverage, or have her sister drive their

daughter to a facility in Cleveland, Ohio-186 miles northeast-which was the closest

facility within the medical insurer's network. Id. The mother attempted to obtain out-of-

network authorization and was even assured by a doctor in the Cincinnati facility that the

medical insurer would authorize coverage. Id. at 924, 929-30. The Cincinnati facility

performed the surgery at a cost of approximately $13,000. Id. at 924.




                                             7
No. 33430-9-III
In re Marriage ofNewgard


       Ultimately, the medical insurer denied coverage. Id. The parties' child support

order required the father to pay 100 percent of uninsured medical expenses. Id. at 925.

The father sought to be excused from this requirement because the mother did not obtain

preauthorization before sending the daughter to an out-of-network facility. Id. The trial

court equitably apportioned the bill 25 percent to the mother and 75 percent to the father,

because the mother was in a "' better position to secure coverage for the kidney stone

treatment by [the medical insurer]."' Id. The Court of Appeals held this was an abuse of

discretion, and the Zandi court agreed. Id. at 931.

       Zandi holds that marital fault is irrelevant in proceedings relating to divorce. Id. at

929. And absent changed circumstances to justify modification, a child support order

must be enforced in accordance with its terms. Id. Zandi discusses the possibility that

one parent might "' boundlessly violate the insurance plan's in-network limitation with

knowledge that the other parent would be forced to absorb the resulting costs.'" Id.

(quoting Zandi, 190 Wn. App. at 57 (Worswick, J., dissenting)). Zandi disposed of that

concern by noting there was no evidence of bad faith or unreasonable conduct by either

parent. Id. Pertinent to our disposition here, Zandi explains:

       [A] trial court[ ] [has] discretion to fashion a result that comports with
       fundamental fairness. A trial court presented with evidence of bad faith
       could, for example, reasonably conclude that a party acting in bad faith
       constitutes changed circumstances.

                                              8
No. 33430-9-III
In re Marriage ofNewgard


Id. at 930 n.2 (citing RCW 26.09.170(5)-(7)).

       Here, we are unable to determine whether Pennelopy engaged in that type of

conduct that would permit modification of the child support order. Although the trial

court here applied equitable principles in reaching its result, Zandi repudiated the notion

that equitable principles, alone, empower courts to modify child support orders. 3 Zandi

permits a finding of bad faith or unreasonable conduct to modify a child support order.

Because this requires findings, we remand to the trial court for it to reconsider its order in

light of Zandi.

       Attorney fees and costs

       Both parties seek appellate attorney fees and costs.

              Jeffrey's request

       Jeffrey requests appellate attorney fees and costs under three theories-(!) RCW

26.18.160, (2) RAP 18.9, and (3) Pennelopy's alleged intransigence for filing the appeal

and requiring Jeffrey to incur additional attorney fees. RCW 26.18.160 provides for an

award of costs, including reasonable attorney fees, to the prevailing party in any action to

enforce a support order under chapter 26.18 RCW. The statute entitles Jeffrey to his



       3
        "Equity ... follows the law and cannot provide a remedy where legislation
expressly denies it." Stephanus v. Anderson, 26 Wn. App. 326, 334, 613 P.2d 533 (1980).

                                              9
No. 33430-9-111
In re Marriage ofNewgard


reasonable attorney fees and costs only if Pennelopy acted in bad faith in connection with

this proceeding. RCW 26.18.160. Under RAP 18.9, frivolous appeal sanctions should be

awarded "if the appellate court is convinced that the appeal presents no debatable issues

upon which reasonable minds could differ and is so lacking in merit that there is no

possibility of reversal." In re Marriage of Foley, 84 Wn. App. 839,847,930 P.2d 929

(1997). Additionally, a party's intransigence in a family law matter is a basis for attorney

fees on appeal if it caused the other party to incur additional attorney fees. In re

Marriage of Wallace, 111 Wn. App. 697, 710, 45 P.3d 1131 (2002); accord In re

Marriage ofBuchanan, 150 Wn. App. 730,739,207 P.3d 478 (2009). Intransigence is

"demonstrated by litigious behavior, bringing excessive motions, or discovery abuses."

Wallace, 111 Wn. App. at 710.

       Pennelopy's arguments are not frivolous nor do they constitute intransigence. Her

arguments are consistent with Zandi. We deny Jeffrey's request for an award of appellate

attorney fees and costs.

              Pennelopy 's request

       Pennelopy seeks attorney fees and costs pursuant to RCW 26.09.140 and RAP

18.1. She asserts "[t]he father nets $13,587 per month while the mother nets $4,611 per

month." Br. of Appellant at 6.


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No. 33430-9-III
In re Marriage of Newgard


       When applicable law mandates consideration of the parties' financial resources in

making an award of fees and expenses, RAP 18 .1 (c) requires the requesting party to file a

financial affidavit no later than 10 days prior to the date the case is set for oral argument

or consideration. Here, we originally notified the parties that a panel would consider this

case on March 18, 2016. After so notifying the parties, we stayed this decision pending

the Supreme Court's Zandi decision. Once the Supreme Court decided Zandi, the parties

filed supplemental briefs. After we received the briefs, we notified the parties that a

panel would consider this case on June 26, 2017. Pennelopy has not filed a financial

declaration and, thus, has not complied with RAP 18.l(c). We, therefore, do not consider

her request.

       Remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           Lawrence-Berrey, J.
WE CONCUR:                                                                       j

Feart,~,J

                                              11
