                                                                       FILED
                                                                  SEPTEMBER 20, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

In the Marriage of                            )
                                              )        No. 35557-8-III
MELANIE DEE LOTT,                             )
                                              )
                     Respondent,              )
                                              )
       and                                    )        UNPUBLISHED OPINION
                                              )
JEREMY RENE LOTT,                             )
                                              )
                     Appellant.               )

       KORSMO, J. — Jeremy Lott appeals from orders entered following the trial court’s

hearing on his motion to relocate. We affirm the trial court, but remand for clarification

of the attorney fee award.

                                          FACTS

       Six months after the decree finalizing the dissolution of the marriage between Mr.

Lott and respondent Melanie Lott, which gave both parties equal responsibility for

parenting the couple’s five children, he filed a motion to relocate to Utah. The motion

attempted to invoke the statutory presumption of relocation granted the parent with

primary parenting responsibility.
No. 35557-8-III
In re Marriage of Lott


       Mr. Lott represented himself in the trial court.1 After filing the motion, he refused

to accept service of his ex-wife’s response to the motion until after her deadline for

answering had passed. He then attempted to have an order granting relocation entered ex

parte on the grounds that she had not timely served him. The trial court declined to hear

the matter ex parte.

       The case subsequently proceeded to hearing on the relocation motion and a request

by Mr. Lott to have respondent found in contempt of court on several different theories.

The court denied the motion to relocate and found that Ms. Lott was not in contempt.

The trial court also found that Mr. Lott should pay for Ms. Lott’s attorney fees related to

the relocation issue, although not the contempt issue, stating:

       —it’s the time for you to listen. As for your motion for relocation Ms.
       Lacoste is correct the act doesn’t apply. Your suggestion that the solution
       to the problem is that the other party just needs to move to a new
       community is kind of stunning. And reflects and I don’t use this word
       often an arrogance about the degree to which you believe that you get to
       control the world. It’s dismissed I’m inclined to believe that you avoided
       service and for that reason with respect to defending the motion for
       relocation I will grant attorney's fees. With respect to your motion for show
       cause that is denied I will not grant attorney’s fees there.
               So attorney’s fees as to the period of time necessary to prepare and
       defend against the motion for relocation. You do not serve yourself well in
       the manner in which you’ve argued these motions you should consider
       those things going forward.

Clerk’s Papers (CP) at 130 (emphasis added).



       1
           He also continues to represent himself in this appeal.

                                               2
No. 35557-8-III
In re Marriage of Lott


       Separate written orders were entered denying both the motion for contempt and

the motion to relocate. Mr. Lott filed separate notices of appeal from each order; this

court treated the two notices as part of a single appeal. A panel considered the case

without hearing oral argument.

                                           ANALYSIS

       We address three issues that we deem present in this appeal. First, we will

consider Mr. Lott’s argument that the trial court erred in failing to find Ms. Lott in

contempt. Next, we turn to the contention that the trial judge was biased against Mr. Lott

as reflected in the ruling on relocation. Finally, we turn to the attorney fee award for

defending the relocation motion.

       Contempt Ruling

       Mr. Lott argues that the trial court erred in failing to find Ms. Lott in contempt.2

This court is not permitted to find facts and cannot overturn the trial court’s conclusion

that Mr. Lott failed to prove his case.3




       2
         We decline to consider another unproved contempt claim—that Ms. Lott avoided
service. This issue was not presented to the trial court and is not properly before us.
RAP 2.5(a).
       3
         Mr. Lott’s brief includes attachments that were never presented to the trial court
and were not part of the trial court’s decision-making process. They are not properly in
the record of this appeal. RAP 9.1(c); RAP 10.3(a)(8). Accordingly, we will disregard
the new evidence. A trial court can never err by failing to consider information that was
not presented to it.

                                              3
No. 35557-8-III
In re Marriage of Lott


       Numerous well-established standards guide review of this claim. Contempt of

court is the intentional disobedience of a lawful court order. In re Humphreys, 79 Wn.

App. 596, 599, 903 P.2d 1012 (1995) (citing RCW 7.21.010(1)(b)). In the context of

dissolution and parental support, contempt is governed by RCW 26.09.160. The party

moving for contempt has the burden of proving contempt by a preponderance of the

evidence, by providing evidence that the offending party “acted in bad faith or engaged in

intentional misconduct or that prior sanctions have not secured compliance with the

plan.” In re James, 79 Wn. App. 436, 442, 903 P.2d 470 (1995). A contempt ruling must

be supported by a finding that a violation of an existing court order was intentional.

Holiday v. City of Moses Lake, 157 Wn. App. 347, 355, 236 P.3d 981 (2010).

       This court reviews a trial court’s decision in a contempt proceeding for an abuse of

discretion. James, 79 Wn. App. at 439-440. This court does not weigh conflicting

evidence or substitute our judgment for that of the trial court. In re Rich, 80 Wn. App.

252, 259, 907 P.2d 1234 (1996). A trial court’s challenged factual findings regarding

contempt will be upheld on appeal if they are supported by substantial evidence. In re

Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.3d 1174 (2003). However, because it is

the role of the trial court, not the appellate court, to find facts, a reviewing court lacks the

ability to find persuasive evidence that the trier of fact failed to find persuasive. Quinn v.

Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009).



                                               4
No. 35557-8-III
In re Marriage of Lott


       Mr. Lott’s appeal of the contempt ruling largely runs afoul of this last principle.

This court is capable of determining whether or not the evidence supports a court’s

finding of fact. Id. It is not capable of countermanding a determination that something

did not happen because that would make this court, not the trial court, the determiner of

what did occur. Id. Who and what to believe is solely an issue for the trial court.

       In addition, whether or not someone acted with the requisite intent also is a factual

question. Id. Thus, even if Ms. Lott did the complained of acts, that fact alone is insufficient

to prove contempt. The contemptuous actions must have been intentionally undertaken. 4

       This court is not a finder of fact and does not weigh Mr. Lott’s evidence to

determine if the trial judge should have believed it. Accordingly, the factual

determination that the allegations were unproved is not subject to the manner of appellate

review Mr. Lott seeks. An unproved assertion of fact simply cannot be proved on appeal.5



       4
         For this reason, the complaint that property was not returned to him and, in the
instance of a bowl, was returned broken, was not proved to be contemptuous. Mr. Lott
presented no evidence that Ms. Lott intentionally broke the bowl or intentionally
withheld property.
       5
         Even if it were in the province of this court to consider evidence, we would
necessarily have to reach the same result as the trial judge. One of Mr. Lott’s complaints
was that respondent had not timely paid her share of expenses. However, Mr. Lott did
not enter them into the on-line service that the parties had agreed to use to account for
shared expenses. Ms. Lott could not have erred when Mr. Lott failed to live up to his
accounting obligation. In another instance, Mr. Lott complained that his wife had
unilaterally taken a son to an herbalist without his consent. However, that event occurred
before the parenting plan was entered and for that reason, among others, could not
constitute a violation of any court order.

                                             5
No. 35557-8-III
In re Marriage of Lott


       The contempt argument is without merit.

       Relocation Ruling

       Mr. Lott argues that the relocation ruling is erroneous because it resulted from the

bias of the judge against him and because opposing counsel made false statements in

court. These allegations are baseless and little need be said about them.

       We review a claim of judicial bias under the presumption that a trial judge

performs his or her functions without bias or prejudice. State v. Hecht, 2 Wn. App. 2d

359, 369, 409 P.3d 1146 (2018). Casual and unspecific allegations of bias provide no

basis for appellate review, even when asserted by a pro se litigant. State v. Cameron, 47

Wn. App. 878, 884, 737 P.2d 688 (1987).

       The judicial bias complaint centers on the trial judge’s comments concerning Mr.

Lott’s improper attempts to enter an ex parte order authorizing the relocation of the

children to Utah. Ex parte orders typically are entered by the written agreement of the

parties. Even when one party believes he has a winning legal argument, as Mr. Lott

apparently did here, it is the judge who makes that determination after hearing argument

from both parties. When, as here, a party has appeared in an action, the party is entitled

to notice before entry of any order. CR 5(a), 55(a)(3).

       Here, Mr. Lott attempted to obtain a judge’s signature without the agreement of

the opposing party and, indeed, over the objection of the respondent to his plan. The trial

judge understandably was not happy with that action and cannot be faulted for

                                             6
No. 35557-8-III
In re Marriage of Lott


considering that to be additional evidence of Mr. Lott’s bad faith handling of this matter.

Mr. Lott may have had an innocent explanation for misusing the ex parte process, but the

trial judge was under no obligation to believe it. Rejection of Mr. Lott’s position is not

evidence of judicial bias.

        Similarly, opposing counsel was under no obligation to see the evidence in the

same manner as Mr. Lott did. He complains, for example, that she falsely accused him of

threatening to move the children. However, that is a reasonable inference from the

evidence that one of the children had reported that their father told them to pack and to be

ready to move in short order. It may well be that Mr. Lott expected there would be no

opposition to his plan and it would rapidly fall into place. Again, however, it is an

equally plausible inference that he was prepared to move the children first and seek

judicial approval after the fact. Ms. Lott’s counsel was not required to see the evidence

in favor of Mr. Lott rather than her own client. Just because Mr. Lott disagrees with that

view of the evidence does not make the attorney’s statement false.

        These claims are without merit.

        Attorney Fees

        The final issue is a contention that the trial court erred by imposing attorney fees

against Mr. Lott on the relocation issue. We remand that issue for clarification from the

trial court.



                                               7
No. 35557-8-III
In re Marriage of Lott


       RCW 26.09.140 allows for the award of fees or costs to parties in dissolution

proceedings. The award is discretionary and available at both the trial court and on

appeal. RCW 26.09.140. The award must be based on a consideration of the needs of

the spouse seeking the fees and the ability of the other spouse to pay. In re Terry, 79 Wn.

App. 866, 871, 905 P.2d 935 (1995). The court may also base a fee award on a party’s

intransigence. MacKenzie v. Barthol, 142 Wn. App. 235, 242, 173 P.3d 980 (2007); Eide

v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969). “When intransigence is established,

the financial resources of the spouse seeking the award are irrelevant.” In re Marriage of

Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989). Awards of attorney fees based on

the intransigence of one party have been granted when the party engaged in “foot-

dragging” and as an “obstructionist,” as in Eide, 1 Wn. App. at 445; when a party filed

repeated unnecessary motions, as in Chapman v. Perera, 41 Wn. App. 444, 455-456, 704

P.2d 1224 (1985); or simply when one party made the trial unduly difficult and increased

legal costs by his or her actions, as in Morrow, 53 Wn. App. at 591. This court reviews

decisions to award fees or not for abuse of discretion. In re Marriage of Zeigler, 69 Wn.

App. 602, 609, 849 P.2d 695 (1993).




                                            8
No. 35557-8-III
In re Marriage of Lott


       This case does not involve a request by Ms. Lott for attorney fees under RCW

26.09.140. Accordingly, given the nature of the court’s ruling and the absence of a

statutory request, we assume the trial court acted on the basis of Mr. Lott’s intransigence.6

       Attorney fees imposed for intransigence are an equitable remedy. In re Marriage

of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). Except when the

intransigence permeates the entire proceedings, the trial court must segregate those fees

caused by the intransigence from those incurred for other reasons. In re Marriage of

Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002). Normally, an unsupported fee

award “will be remanded for the entry of proper findings of fact and conclusions of law

that explain the basis for the award.” Berryman v. Metcalf, 177 Wn. App. 644, 659, 312

P.3d 745 (2013).

       There are no written findings of fact concerning the attorney fee award, leaving

only the oral remarks for our consideration. Those, unfortunately, are ambiguous

concerning the basis for the fee award. The court found that Mr. Lott avoided service and

“for that reason,” the court awarded fees to Ms. Lott for “defending the motion for




       6
         In light of the decision not to award fees on the contempt portion of the case, it
does not appear that the trial court treated the action as frivolous. The court has
discretion under RCW 4.84.185 both to impose sanctions for frivolous litigation and to
determine the amount of reasonable attorney fees. E.g., Fluke Capital & Mgmt. Servs.
Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986).


                                              9
No. 35557-8-III
In re Marriage of Lott


relocation.” CP at 130. If service avoidance7 was the sole basis for finding intransigence,

then it would appear that only fees relating to the service issue, rather than the entire

relocation motion, would have been in order. However, the court’s expressed concerns

about the attempts to enter the order of relocation ex parte and the inapplicability of the

relocation presumption statute suggest that the intransigence “permeated” the entire issue

and was the basis for awarding fees for the defense of that motion.

          Uncertain about the scope of the trial court’s equitable remedy, we remand for

entry of an order clarifying the award. The clarification order, which need not be

elaborate, should identify why the award was made (the factual basis for the ruling),

whether the fees apply to the entire relocation hearing or simply those costs relating to

the avoidance issue, and that the fee awarded was reasonably related to the scope of that

remedy. The court has complete discretion on remand whether to hold a hearing or

accept any input from the parties. Any party aggrieved by the order may appeal the

ruling.

          Ms. Lott also seeks attorney fees for responding to this appeal. Since we afford

Mr. Lott some potential relief, we deny that request. However, we deem Ms. Lott the

substantially prevailing party on appeal and she is entitled to her costs, including

statutory attorney fees, upon timely filing of a cost bill. RAP 14.3, 14.4.


          7
        Although Mr. Lott does not agree with the finding that he avoided service, the
record supports the trial court, which was free to credit the process server’s statements.

                                              10
No. 35557-8-III
In re Marriage ofLott


      Affirmed and 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.




WE CONCUR:



 �-''-W�W\.YJ. 1               (.,�,
   Lawrence-Berrey,�J.




      Pennell, J.




                                           11
