                                                                     flLEt
                                                             COURT OF APPEALS DIV I.
                                                              STATE OF WASHINGTON
                                                             2016 DEC 10 AM 8:50




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

In the Matter of the Parenting            )      No. 77854-4-1
and Support of E.J.S., a minor child.     )
                                          )
BRIAN MICHAEL RIBNICKY,                   )
                                          )
                      Appellant,          )
                                          )
       and                                )
                                          )      UNPUBLISHED OPINION
KATI J. SOTANIEMI,                        )
                                          )      FILED: December 10, 2018
                      Respondent.         )
                                          )

       VERELLEN, J. — Brian Ribnicky challenges various provisions of the
parenting plan and child support order entered in this parentage action. The

appeal mainly revolves around the court's imposition of limitations on Ribnicky's

decision-making authority under RCW 26.09.191 and Kati Sotaniemi's failure to

attend or testify at trial. We affirm.

                                         FACTS

       Ribnicky and Sotaniemi have one child in common, E.J.S. Ribnicky and

Sotaniemi never married. On September 27, 2016, Ribnicky brought this

parentage action to establish a parenting plan and child support for E.J.S.
No. 77854-4-1/2


       Prior to trial, Jennifer Wheeler, a parenting evaluator, interviewed and

evaluated both parties. During trial, Ribnicky successfully offered Wheeler's

evaluation notes into evidence. Wheeler's notes documented an incident from

March 2015 when Ribnicky, Sotaniemi, and E.J.S. were on vacation in Florida.

Ribnicky reported to Wheeler that during the trip, "he spanked his son to discipline

him for biting him." Ribnicky reported "drinking half a bottle of champagne, six

beers, and some wine" prior to the incident.2 Based on a history of alcohol abuse,

Wheeler diagnosed Ribnicky with moderate alcohol use disorder.

       Sotaniemi reported to Wheeler she did not remember how much Ribnicky

drank prior to the incident, but "it was a lot."3 Sotaniemi reported to Wheeler that

E.J.S. bit Ribnicky, and Ribnicky hit him. "I tried to protect him[.] [T]hen

[Ribnicky] attacked me.. . . I was covered in bruises all over. . . .[H]e wouldn't let

us leave." The notes included other incidents of Ribnicky's aggressive physical

conduct causing fear to Sotaniemi. At trial, Sotaniemi offered, and the court

admitted Exhibit 118, a photograph of herself with bruises on her arms and chest.

Sotaniemi reported to Wheeler that she and E.J.S. left the hotel the next morning.

She also reported that Ribnicky "start[ed] sending emails and texts begging us to




       1 Ex. 69 at 367.
       2 Id.

       3 Ex. 70 at 388.
       4 Id.



                                           2
No. 77854-4-1/3


come back."5 At trial, Sotaniemi offered, and the court admitted Exhibit 106, a

copy of the e-mails between Sotaniemi and Ribnicky following the incident.

      The court also heard testimony from Ribnicky. Ribnicky characterized the

March 2015 incident as parental discipline rather than domestic violence or abuse.

       On September 15, 2017, the court entered a parenting plan and child

support order. In the parenting plan, the court imposed RCW 26.09.191

restrictions on Ribnicky's decision-making authority. The court found "Brian

Ribnicky has a history of domestic violence as defined in RCW 26.50.010(1),"6

"Brian Ribnicky has assaulted someone causing grievous physical harm or fear of

such harm," and "Brian Ribnicky has a long-term problem with drugs, alcohol, or

other substances that gets in the way of his ability to parent."7 In finding a history

of domestic violence and an assault, the court noted that the evidence supporting

the finding "include[ed] without limitation Exhibit 106, Exhibit 118, and [Ribnicky's]

credibility issues when he was cross-examined regarding these matters."5

       On November 29, 2017, after granting each party's motion for

reconsideration as to their income for purposes of child support, the court entered




       5   Id.
       6 Clerk's Papers(CP) at 693. Although the form document containing the
court's finding cites RCW 26.50.010(1), which provides the definition of "courts,"
both parties recognize section (3) defining "domestic violence" applies. Resp't's
Br. at 13-14; Reply Br. at 13.
       7 CP      at 693.
       8   CP at 690.



                                           3
No. 77854-4-1/4


the final parenting plan. In the final parenting plan, the court included

RCW 26.09.191 restrictions on Ribnicky's decision-making authority.

       Ribnicky appeals.

                                     ANALYSIS

I. Evidentiary Challenges

       Ribnicky contends the trial court erred in admitting certain evidence it relied

on to impose RCW 26.09.191 limitations on his decision-making authority.

       RCW 26.09.191(6) provides, "In determining whether any of the conduct

described in this section has occurred, the court shall apply the civil rules of

evidence, proof, and procedure."9

       Ribnicky argues we should review his evidentiary challenges de novo

because the trial court misinterpreted section (6) when it admitted certain evidence

contrary to the civil rules of evidence. But we review a trial court's decision to

admit or exclude evidence for abuse of discretion.10

       A. Notes ofParenting Evaluator

       Ribnicky argues the court improperly admitted the testimony and notes of

the parenting evaluator, Jennifer Wheeler, in violation of ER 802.

       Under ER 802,"[Nearsay is not admissible except as provided by these

rules, by other court rules, or by statute." "'Hearsay' is a statement, other than one




       9(Emphasis   added.)
       10 Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583(2010).




                                          4
No. 77854-4-1/5



made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted."11

       Ribnicky claims Wheeler's testimony constituted hearsay because she

"relayed unsworn statements that had been offered by the Mother during the

evaluator's investigations."12

       Ribnicky fails to provide any specific citations to the record where the

parenting evaluator relayed Sotaniemi's unsworn statements. A review of the

record reveals Wheeler's testimony focused on her recommendations concerning

the parenting plan rather than hearsay statements. We are not obligated "to comb

the record" where counsel has failed to support arguments with citations to the

record.13

       Ribnicky also contends the court improperly admitted and considered

Wheeler's testimony and notes, in violation of ER 705.

       Under ER 703, an expert may rely on inadmissible facts and data to form

an opinion. ER 705 allows the court to admit such evidence to show the basis for

an expert's opinion. "But ER 705 is not a mechanism for admitting otherwise

inadmissible evidence. An expert's use of the written reports of absent witnesses

is not substantive evidence; they are admissible solely to show the grounds upon

which the testifying expert's opinion is based."14


       11 ER 801.
       12   Appellant's Br. at 10.
       13 See   In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998).
       14   In re Welfare of J.M., 130 Wn. App. 912, 924-25, 125 P.3d 245 (2005).



                                             5
No. 77854-4-1/6



       Ribnicky claims the court violated ER 705 because it considered Wheeler's

testimony and notes as substantive evidence of domestic violence. Even

accepting Ribnicky's argument as to Wheeler's testimony, the interview notes are

different.

       "Under the invited error doctrine, a party may not set up an error at trial and

then complain of it on appeal. The doctrine applies when a party takes affirmative

and voluntary action that induces the trial court to take an action that party later

challenges on appeal."15 Ribnicky cannot complain the trial court improperly

admitted or considered Wheeler's notes when he offered Wheeler's notes

containing Sotaniemi's allegations into evidence without restriction and without

requesting a limiting instruction.16

       During closing argument, Ribnicky vaguely suggested Wheeler's testimony

could not serve as the basis for the domestic violence finding without direct

testimony from Sotaniemi. Ribnicky's statements during closing argument were

not in the form of an objection, and he did not specifically state the ground of an

objection. It is not clear the argument even applied to Wheeler's notes. A

statement raised for the first time in closing argument does not qualify as a timely

"objection" under ER 103(a)(1).




       15    Grange Ins. Ass'n v. Roberts, 179 Wn. App. 739, 774, 320 P.3d 77
(2013).
       16 See Report of Proceedings(RP)(Aug. 15, 2017) at 169-70; see ER 105
(a party must request a limitation on the scope of evidence being admitted).




                                           6
No. 77854-4-1/7


       We deny Ribnicky's challenge to the admission and consideration of

Wheeler's notes

       B. Exhibit 118 and 106

       Ribnicky contends the court improperly admitted Exhibit 118, two

photographs of Sotaniemi with extensive bruises on her arms and chest, in

violation of ER 901 and 802. Ribnicky also argues the court improperly admitted

Exhibit 106, a series of e-mails between Ribnicky and Sotaniemi, in violation of

Ribnicky's due process rights and the confrontation clause.17

       We do not need to address whether the court properly admitted either

exhibit. Even assuming an abuse of discretion, the outcome is the same.

Wheeler's notes contained evidence of Sotaniemi's allegation that Ribnicky

"attacked" her in Florida and that, as a result, she "was covered in bruises all

over."18

II. Cross-Examination

       Ribnicky argues his due process rights were violated because Sotaniemi

was absent from trial and unavailable for cross-examination.

      "Due process is a flexible concept; the level of procedural protection varies

based on circumstance."19 "Due process may require cross-examination even in a



       17We note that Ribnicky does not provide any compelling authority that the
confrontation clause has any application in this setting.
       18   Ex. 70 at 388.
       Aiken v. Aiken, 187 Wn.2d 491, 501, 387 P.3d 680(2017)(citing
       19
Matthews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).




                                          7
No. 77854-4-1/8


civil proceeding where the confrontation clause is not at issue."2° In Matthews v.

Eldridge, the United States Supreme Court provided a balancing test to determine

the level of due process protection required in a particular situation.21 Under this

test, we consider:

      (1)[T]he private interest impacted by the government action,(2)"the
      risk of an erroneous deprivation of such interest through the
      procedures used, and the probable value, if any, of additional or
      substitute procedural safeguards," and (3) the government interest,
      including the additional burden that added procedural safeguards
      would entail.[221

       Ribnicky relies on Aiken v. Aiken23 to argue he was entitled to cross-

examine Sotaniemi concerning her allegations of domestic violence. There, the

father sought to cross-examine his daughter at a protection order hearing

concerning her allegations of abuse. Our Supreme Court acknowledged,"Cross-

examination is a powerful instrument in eliciting truth or discovering error in

statements" but ultimately determined the father was not entitled to cross-examine

his daughter under the Matthews balancing test.24

       Here, Ribnicky is seeking to cross-examine his wife concerning her

allegations of domestic violence. Unlike Aiken, Ribnicky never sought to cross-

examine Sotaniemi. At the start of trial, Sotaniemi's counsel informed the court



       20   Id.
       21   424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
       22 Aiken, 187 Wn.2d      at 501-02 (quoting Matthews, 424 U.S. at 335).
       23 187 Wn.2d       491, 387 P.3d 680(2017).
       24   Id. at 505.




                                            8
No. 77854-4-1/9


that Sotaniemi would not be attending trial. Ribnicky did not object to Sotaniemi's

absence, he did not seek to compel her attendance under CR 43, and he did not

ask to shorten time to compel her attendance. We conclude Ribnicky failed to

preserve this issue for appeal.

       Ribnicky also argues the trial court should have drawn an adverse inference

from Sotaniemi's absence and lack of testimony. He relies on Smith v. Smith,

where this court acknowledged,"Once a witness in a civil suit has invoked his Fifth

Amendment privilege [against self-incrimination], the trier of fact is entitled to draw

an adverse inference from his refusal to testify."25

       Here, Sotaniemi did not invoke her Fifth Amendment right against self-

incrimination. Rather, she simply choose not to attend trial. Ribnicky never

objected to her absence. Smith does not apply to these circumstances. Ribnicky

fails to provide any other authority to support his argument.

       Ribnicky also seems to contend his due process rights were violated

because he did not have notice that Sotaniemi would seek restrictions under

RCW 26.09.191. But the pretrial conference order identifies RCW 26.09.191 as

an issue to be decided at trial.
                              I
       We conclude Ribnicky's due process rights were not violated by

Sotaniemi's absence.




       25 1   Wn. App. 2d 122, 131, 404 P.3d 101 (2017).



                                          9
No. 77854-4-1/10



III. Substantial Evidence

       Ribnicky contends substantial evidence did not support the trial court's

finding of a history of domestic violence and resulting RCW 26.09.191 restrictions.

       We review a trial court's ruling on the provisions of a parenting plan for

abuse of discretion.26 We review a trial court's findings of fact under a substantial

evidence standard.27 "Substantial evidence' is evidence sufficient to persuade a

fair-minded person of the truth of the matter asserted."28

       RCW 26.09.191(1) is a mandatory provision requiring the trial court to

prohibit mutual decision making if the court finds that a parent engaged in "a

history of domestic violence as defined in RCW 26.50.010(3) . . . or an assault. . .

that causes grievous bodily harm or the fear of such harm."

       RCW 26.50.010(3) provides three alternative definitions of "domestic

violence":

      (a) Physical harm, bodily injury, assault, or the infliction of fear of
      imminent physical harm, bodily injury or assault, between family or
      household members;(b) sexual assault of one family or household
      member by another; or (c) stalking as defined in RCW 9A.46.110 of
      one family or household member by another family or household
      member.




       26   Katare v. Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).
       27 Sunnvside   Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d
369 (2003).
       28   In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014).




                                          10
No. 77854-4-1/11



       This court has acknowledged the term "'a history of domestic violence" is

meant to exclude "isolated, de minimis incidents which could technically be

defined as domestic violence."29

       Here, the court found Ribnicky has a history of domestic violence as

defined in RCW 26.50.010(3), and that he assaulted someone, causing grievous

physical harm or fear of such harm.

       We conclude there is sufficient evidence of "a history of acts of domestic

violence as defined in RCW 26.50.010(3)" including one "assault" and several

incidents revealing "the infliction of fear of imminent physical harm, bodily injury or

assault."39

       First, the record contains evidence of Ribnicky assaulting Sotaniemi in

March 2015 during a family vacation in Florida. As to the Florida incident,

Ribnicky testified, "[E.J.S.] was on both, both my arms and he was biting my arm

continuously, so I screamed, No, and then !tapped his butt with the remote three

times."31 He testified that he tapped E.J.S. "very gently on his butt" and that

Sotaniemi "blew it out of proportion."32 In Wheeler's notes, offered by Ribnicky

during trial, Sotaniemi reported to Wheeler that E.J.S. bit Ribnicky, and Ribnicky


       29 In re Marriaqe of C.M.C., 87 Wn. App. 84, 88, 940 P.2d 669(1997)
(quoting 1987 Proposed Parenting Act, Replacing the concept of child custody,
Commentary and Text 29 (1987)).
       30 Because we affirm the finding of a history of domestic violence as defined
in RCW 26.50.010(3), we need not address the alternative basis for .191
restrictions based on grievous bodily injury or fear of grievous bodily injury.
       31 RP (Aug. 15, 2017) at 49.
       32 id.




                                          11
No. 77854-4-1/12


hit him. "I tried to protect him[.] [T]hen [Ribnicky] attacked me. . . . I was covered

in bruises all over. . . .[H]e wouldn't let us leave."33

       During trial, Ribnicky generally denied he was ever physically abusive to

Sotaniemi. On direct examination, with regard to the Florida incident, Ribnicky's

attorney asked whether he touched or grabbed Sotaniemi. Ribnicky answered, "I

didn't grab her or anything,"34 apparently referring to the Florida incident. In

Ribnicky's interview with Wheeler, Ribnicky acknowledged "that each of them had

engaged in a minor incident of physical aggression in their relationship (e.g.,

grabbing the other person), but no injuries."35 But the trial court found Ribnicky

had "credibility issues when he was cross-examined" concerning the "acts of

domestic violence and assault."36

       Second, the record contains evidence of Ribnicky's general pattern of

aggressive conduct. Sotaniemi told Wheeler that Ribnicky "had broken things,

punched holes in the wall."37 Sotaniemi also told Wheeler that Ribnicky "was very

aggressive but [the Florida incident] was the first time he physically hurt

[Sotaniemi]."35 Apparently, as to the Florida incident, Sotaniemi indicated "that she




       33 Ex. 70 at 388.

       34   RP (Aug. 15, 2016) at 51.
       35   Ex. 69 at 381 (emphasis added).
       36 CP at 690.
       37 Ex. 70 at 389.
       38 Id.




                                           12
No. 77854-4-1/13


had been injured as a result of a conflict (e.g. cut/bruise)."39 But separately,

Sotaniemi endorsed that Ribnicky "had engaged in physical aggression during

their relationship (e.g. throwing something at her, twisting her arm, pushing,

grabbing).',40

       Third, the record contains evidence of two specific incidents of Ribnicky's

aggressive conduct when drinking. In early 2014, after E.J.S. was born, while

Sotaniemi was recovering from surgery at the hospital, Ribnicky was drinking and

"punching the walls in the room."" And in February 2015, Ribnicky was "really

drunk" and upset about a letter he had received from the homeowners'

association. He told Sotaniemi he was "going to go and show them how it is done

in Jersey."42 Sotaniemi tried to stop him, and Ribnicky threatened that if she tried

to stop him or tell anyone,"[she] will somehow suffer for it."43

       Finally, the record also contains evidence consistent with Sotaniemi's

imminent fear of Ribnicky's aggressive conduct when drinking. As to the February

2015 incident, Sotaniemi reported to Wheeler she "thought about calling the

police, but[she] knew the moment he was out of jail, [Ribnicky] would hurt [her].""

Sotaniemi told two people in the building, but she "made them swear they wouldn't



       39   Ex. 70 at 404.
       40 Id. at 387.
       41   Id.
       42   Id. at 388.
       43   Id.
       44   Id.




                                          13
No. 77854-4-1/14


let [Ribnicky] know [she] was the one who had ratted him out, because I was afraid

of what he might do."45 In August 2015, after Sotaniemi and Ribnicky had

separated, Ribnicky came to Sotaniemi's house "really drunk."46 Sotaniemi told

Wheeler, "I had to be careful. I didn't want him to get aggressive."47 She also

said, "I am genuinely scared of this guy."45 On another occasion, Ribnicky

threatened to "come to the house to 'protect'[E.J.S.]."49 Sotaniemi told Wheeler

she and her husband were "genuinely scared."5°

        In summary, the record contains evidence of a specific assault, occurring in

March 2015, when Ribnicky restrained Sotaniemi, resulting in bruises. The record

also contained evidence of other incidents, including Ribnicky yelling at Sotaniemi,

Ribnicky punching walls, and Ribnicky throwing things at Sotaniemi. Additionally,

the record contains evidence of Sotaniemi's continuing fear of Ribnicky based on

these incidents and his tendency to be aggressive when drinking.

        Ribnicky argues that Sotaniemi's alleged fear was unreasonable,

specifically relying on Dr. Wheeler's testimony. During trial, on direct examination,

Ribnicky elicited the following testimony from Wheeler concerning Sotaniemi's

fear:



        45   Id.
        46   Id. at 389.
        47   Id.
        48   Id.
        49   Id. at 390.
        5° Id.



                                         14
No. 77854-4-1/15



       Q:       You also stated in your report that this incident,
                quote/unquote, has significantly contributed to Mother's
                ongoing fear of Father's propensity for future acts of physical
                aggression. Although available data indicate that the current
                severity and active (inaudible) physical violence, although
                Mother's subject[ive] perception of Brian's risk, threat, is much
                higher and has contributed to the current restrictions to
                Father's parental access. So can you explain (inaudible)?

       A:       Yes. In this—this piece that you're discussing here, I think, is
                very important, or at least at the time of my evaluation was a
                very important dynamic that—that I was seeing in this family
                was this disconnect between what my perception—based on
                the objective data of what had actually occurred in this family,
                my perception of what level of risk that posed for this family
                currently, relative to the amount of fear that Mother was
                currently reporting, which was much higher than my
                perception, my analysis, of the current risk. And I think that's
                very important because it's not—it's not that Mother has—
                there's no validity to Mother's fears, right? She did experience
                an incident of violence that was very frightening to her. It's not
                that she doesn't have any basis for her fears and anxiety.
                She clearly does. It's just that the difference, the—the degree
                of her fear is much, much greater than the current risk that is
                posed to her.[51]

       Contrary to Ribnicky's argument on appeal, Wheeler did not conclude

Sotaniemi's fear was unreasonable. Although we do not rely on Wheeler's

testimony, her acknowledgment of SotanieMi's fear is consistent with the definition

of "domestic violence," specifically, the "infliction of fear of imminent physical harm,

bodily injury or assault, between family or household members."52




       51   RP (Aug. 15, 2017) at 150-51 (emphasis added).
       52 RCW    26.50.010(3).



                                            15
No. 77854-4-1/16



       Therefore, even though Wheeler did not conclude there was a pattern of

domestic violence, neither we nor the trial court are bound by Wheeler's opinion.53

The record contains substantial evidence of an assault and the infliction of fear of

imminent physical harm based on Ribnicky's separate multiple incidents of

aggressive conduct. This evidence supports the trial court's finding of a history of

domestic violence. In turn, this finding supports the court's imposition' of

mandatory restrictions on Ribnicky's mutual decision-making authority under RCW

26.09.191(1).54

       Ribnicky also argues the trial court should have given credence to his

testimony. But under the substantial evidence standard, we must not "substitute

our judgment for the trial court's, weigh the evidence, or adjudge witness

credibility."55 Ribnicky is asking this court to reweigh the evidence and reassess

his credibility.

IV. Authority to Impose Restrictions

       Ribnicky argues the trial court lacked the authority to impose certain

restrictions.



       53 The trial judge is "not bound by [guardian ad [item] recommendations." In
re Marriage of Magnuson, 141 Wn. App. 347, 350-51, 170 P.3d 65 (2907); In re
Marriage of Swanson, 88 Wn. App. 128, 138, 944 P.2d 6 (1997).
       54 The trial court's list of "Dleasons for putting limitations on a parent(under
RCW 26.09.191)" expressly includes the alternative reason that "Brian Ribnicky
has a long-term problem with drugs, alcohol, or other substances that gets in the
way of his ability to parent." CP at 693. Ribnicky does not assign error to this
alternative basis for the .191 restrictions.
       55   Greene v. Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1909).




                                          16
No. 77854-4-1/17


       As previously mentioned, we review a trial court's ruling on the provisions of

a parenting plan for abuse of discretion.56

      A court's decision is manifestly unreasonable if it is outside the range
      of acceptable choices, given the facts and the applicable legal
      standard; it is based on untenable grounds if the factual findings are
      unsupported by the record; it is based on untenable reasons if it is
      based on an incorrect standard or the facts do not meet the
      requirements of the correct standard.[57]

       And "[a] trial court wields broad discretion when fashioning a permanent

parenting plan."58

       Here, the trial court found "Ribnicky has a long-term problem With drugs,

alcohol, or other substances that gets in the way of his ability to parent."59 As a

result, the trial court imposed the following conditions on him:

       Obtain a vehicle interlock device with facial recognition and Level 2
       Premium account with Soberlink (Daily Monitoring) and submit
       vehicle interlock device test results directly to the Mother (via
       Soberlink in real time via text and email) prior to his residential time
       with the child . . . . If the Father fails to provide the Mother with his
       vehicle interlock device test results at least two (2) hours prior to his
       parenting time, he shall not having parenting time with [E.J.S.].[601

      And as a result of the court's finding of a history of domestic violence and

an assault, the court required Ribnicky to "[e]nroll in and complete DV

(perpetrator's) treatment with DV Dads from Wellspring Family Services as part of



      56    Katare, 175 Wn.2d at 35.
       57   Littlefield, 133 Wn.2d at 47.
       58   Katare, 175 Wn. 2d at 35.
       59   CP at 693.
      69 CP at 710(emphasis added).



                                            17
No. 77854-4-1/18


the curriculum. He shall sign all necessary authorizations for Wellspring to send

compliance reports directly to the mother."61

       A. Ignition Interlock and Soberlink Monitoring

       Ribnicky argues the trial court violated his right to privacy when it required

him to obtain a vehicle interlock device, Soberlink breathalyzer, and aiSoberlink

account.

       Article 1, section 7 of the Washington Constitution protects a person from

being "disturbed in his private affairs. . . without authority of law." We review

alleged article I, section 7 violations by determining "'whether the action

complained of constitutes a disturbance of one's private affairs" and "'whether

authority oflaw justifies the intrusion."62

       Assuming without deciding that requiring a vehicle ignition interlock and a

Soberlink breathalyzer constitute a disturbance of Ribnicky's private affairs,

authority of law justifies such an intrusion. Under RCW 26.09.191(3)(c), a court

may "preclude or limit any provisions of the parenting plan" if one of the parents

has "[a] long-term impairment resulting from drug, alcohol, or other substance

abuse that interferes with the performance of parenting functions."




       61   1d
       62 Blomstrom v. Tripp, 189 Wn.2d 379, 402-03, 402 P.3d 831 (2017)
(emphasis added)(quoting State v. Surge, 160 Wn.2d 65, 71, 156 P.3d 208
(2007)).



                                              18
No. 77854-4-1/19


       Our Supreme Court has determined "that the legislature intended

RCW 26.09.191(3) restrictions to apply only where necessary to 'protect the child

from physical, mental, or emotional harm.'"63

       Ribnicky does not challenge the court's finding that he "has a long-term

problem with drugs, alcohol, or other substances that gets in the way of his ability

to parent."64 Rather, he contends the intrusions are not justified because they

include monitoring during nonresidential time. But Ribnicky does noi, provide any

authority that the court's broad authority to impose restrictions to protect the child

may not extend beyond the specific hours of the parent's residential time.

       We conclude the trial court did not violate Ribnicky's right to privacy when it

imposed alcohol monitoring conditions as a condition of visitation. The court had

the authority to impose such conditions to protect E.J.S. from physical, mental, or

emotional harm resulting from Ribnicky's problem with alcohol.65

       B. Domestic Violence Perpetrator Treatment with DV Dads

       Ribnicky also argues the trial court lacked the authority to impose domestic

violence perpetrator treatment.




      63   Chandola, 180 Wn.2d at 648.
      64   CF at 693.
      65  Ribnicky suggests the court misunderstood the nature of monitoring via
ignition interlock and Soberlink as distinct from one another. He relies on the
expert's recommendation of Soberlink monitoring alone to argue the Court did not
have the authority or intent to impose both restrictions. He misconstrues the
court's comments, and he fails to cite any authority to support this proposition.



                                          19
No. 77854-4-1/20


       First, Ribnicky's briefing on this issue merely repeats his argument

concerning substantial evidence. We addressed this issue above. Additionally,

Wheeler's recommendation against imposing domestic violence restrictions does

not limit the authority of the court once it finds a history of domestic violence.

       Second, Ribnicky also appears to assume the court has the authority to

impose domestic violence perpetrator treatment only upon entry of a protection

order, but he provides no authority to support this proposition.

       We conclude the trial court had the authority to require Ribnicky to attend

domestic violence perpetrator treatment to protect E.J.S. from physical, mental, or

emotional harm resulting from Ribnicky's history of domestic violence,.

V. Child Support

       Ribnicky also challenges the trial court's calculation of both parties' income

to determine child support.

       As to the child support order, the court calculated Sotaniemi's income

based on her 2016 W-2 and ordered Sotaniemi to submit her 2016 tax return on or

before September 22, 2017. The court calculated Ribnicky's total gross monthly

income at $15,452. This included $14,852 in wages and salary and $600 in

interest and dividend income. The court calculated Sotaniemi's total gross

monthly income at $18,625.

       On September 22, 2017, Sotaniemi submitted her 2016 tax return, but she

informed Ribnicky her accountant made a mistake and the return did not

accurately reflect her 2016 income. Apparently, Sotaniemi's accountant




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No. 77854-4-1/21


mistakenly used both her 2015 and 2016 W-2s to create her 2016 tax return.

Sotaniemi informed Ribnicky that she would filed an amended return when her

accountant returned from vacation.

       On September 25, 2017, Ribnicky moved for reconsideration of various

provisions of the parenting plan and the court's calculation of both parties' income.

He asked the court to recalculate Sotaniemi's income based on her 2016 tax

return. The court granted reconsideration on this issue and calculated Sotaniemi's

total gross monthly income at $65,592. The court also found Sotaniemi was

intransigent for not providing her 2016 tax return prior to trial. But the court

expressed concerns "about the legitimacy of the most recent tax returns

[Sotaniemi]filed with the court."66

       Ribnicky also moved for reconsideration of the court's calculation of his

income because "the court included the $600 for dividends while it was already

included in his gross income in his 1040."67 The court granted reconsideration on

this issue and calculated Ribnicky's total gross monthly income at $14,852.

       On November 8, 2017, Sotaniemi moved for reconsideration of the court's

calculation of her income. Sotaniemi submitted evidence that the 2016 tax return

she filed on September 22, 2017 was based on incorrect information. On

December 7, 2017, the court again determined Sotaniemi was intransigent for "her




       66   CP at 865.
       67   CP at 737.



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No. 77854-4-1/22


failure to disclose her 2016 tax return prior to trial" and imposed sanctions.68 But

the court granted her motion for reconsideration in part and reverted to the child

support order from September 15, 2017.

       We review the court's calculation of child support for abuse of discretion.69

       A. Sotaniemi's Income

       First, Ribnicky argues the trial court incorrectly calculated Sotaniemi's

income because it failed to include Sotaniemi's 2016 stock grant.

       Ribnicky primarily relies on In re Marriage of Avvad, where this court

determined the trial court erred in excluding the father's "exercised and cashed in"

stock option in his income when it calculated child support. 70 The court's rationale

in Ayyad relies on the fact that the father had converted the stock option to cash.

       Here, Sotaniemi's 2016 earning statement shows only that she received a

$94,629.32 "stock award spread."71 And although Sotaniemi's 2016 W-2 appears

to match up with her earning statement, the record does not address the nature of

Sotaniemi's stock grant. Specifically, the record does not address whether

Sotaniemi actually had possession of any stock or whether there are any

restrictions upon Sotaniemi selling any stock actually delivered to her.

Additionally, Ribnicky submits limited briefing to address whether a stock grant

should be considered income to determine child support. He acknowledges that a


      68 CP   at 1018.
      69   In re Marriage of Jess, 136 Wn. App. 922, 926, 151 P.3d 240(2007).
      70 110 Wn. App. 462, 469, 38 P.3d 1033(2002).
      71   Ex. 23.



                                         22
No. 77854-4-1/23


"stock spread award" is not the same thing as the stock option addressed in

Avvad, and he concedes this is an issue of first impression. His citations to out-of-

state cases are unhelpful without comparison and analysis of the out-of-state child

support statutes.

      On this limited record and briefing, we decline to address Ribnicky's

assignment of error concerning the trial court's calculation of Sotaniemi's

income.72

      B. Ribnicky's Income

      Second, Ribnicky contends the trial court incorrectly calculated his income

because it counted his dividend income twice.

       Ribnicky's briefing and argument concerning this issue is factually vague. It

is not clear from his citations to the record how he believes the court counted his

dividend income twice.

      On this limited record and briefing, we decline to address Ribnicky's

assignment of error concerning the trial court's calculation of his income.

VI. Fees on Appeal

       Ribnicky seeks fees on appeal based on Sotaniemi's 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."73


      72 See   Palmer, 81 Wn. App. at 153("Passing treatment of an issue or lack
of reasoned   argument  is insufficient to merit judicial consideration.").
       73 In re Marriage of Pennamen, 135 Wn. App. 790, 807, 146 P.3d 466
(2006).



                                         23
No. 77854-4-1/24


       Here, the trial court found Sotaniemi was intransigent in failing to provide

her 2016 tax return prior to trial and sanctioned Sotaniemi $5,000. Even though a

party's intransigence in the trial court can support an award of fees on appea1,74

we deny Ribnicky's request because Sotaniemi has not cross appealed the

sanctions for intransigence in the trial court, and he fails to establish any further

intransigence by Sotaniemi.

       Sotaniemi seeks fees on appeal based on Ribnicky's intransigence.

      "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."75 Although Ribnicky's arguments on

appeal are not compelling, Sotaniemi fails to establish that Ribnicky has been

intransigent. We deny her request.

       Therefore, we affirm.




WE CONCUR:



6-4441
       74   Mattson v. Mattson, 95 Wn. App. 592, 606, 976 P.2d 157 (1999).
            Pennamen, 135 Wn. App. at 807.



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