                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 13, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 In the Matter of the Marriage of                                    No. 46424-1-II

 TERESA HARKENRIDER,

                                Respondent,

 and

 CHRISTOPHER WODJA,                                           UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, C.J. — Christopher Wodja appeals from a superior court’s dismissal of his

petition to modify the parenting plan entered following a dissolution action between himself and

his former wife, Teresa Harkenrider. The superior court dismissed Wodja’s petition after it found

inadequate cause to proceed to a modification hearing. Wodja appeals, arguing that (1) there was

no basis to revise the court commissioner’s finding of adequate cause, (2) the superior court abused

its discretion by failing to adhere to the statutory procedure for determining adequate cause, (3)

the superior court abused its discretion by relying on a report from the appointed guardian ad litem

(GAL) to make its decision regarding adequate cause, (4) the superior court effectively terminated

Wodja’s parental rights in violation of his constitutional right to due process, and (5) the superior

court abused its discretion by awarding Harkenrider attorney fees and GAL costs. We hold that

the superior court did not abuse its discretion in any respect and affirm.
No. 46424-1-II


                                             FACTS

       Wodja and Harkenrider were married in 2004 and had two children before they divorced

in December 2011. After a lengthy trial, the trial court entered a parenting plan. The parenting

plan granted Harkenrider primary residential custody of the children and denied Wodja all

residential time at least until he completed one year of psychotherapy and an anger management

treatment course.

       On February 7, 2012, Judge Kathryn Nelson entered corrected findings of fact supporting

the dissolution. These findings stated that Wodja’s involvement would be adverse to the children’s

best interest because Wodja’s behavior had created “extreme distress” and had caused emotional

damage. Clerk’s Papers (CP) at 26. The court found that Wodja subjected his children to “constant

conflict,” making repeated negative remarks about Harkenrider to his children, including

suggesting that she did not love them. CP at 26. The court also cited Wodja’s intransigence

throughout the case, including a misleading phone call to police about his family and a frivolous

contempt motion, and added that he increased the cost of litigation by lying about Harkenrider’s

alcohol consumption. The court concluded that this intransigence offset any award of attorney

fees based on need and ability to pay.

       With regard to Wodja’s need for treatment, the court found persuasive the recommendation

of one of Wodja’s expert psychologists that Wodja not have contact with his children until such

time as it could be determined that Wodja had corrected his parental deficiencies that were the

result of his psychological disorders. The trial court was concerned that Wodja had failed to

disclose a number of criminal incidents that were sexual in nature, including allegations of




                                                2
No. 46424-1-II


attempted rape, assault, kidnapping, and drugging of women. In the trial court’s view, it was more

likely than not that Wodja had a sexual deviancy.

       Ultimately, Paula van Pul and Diane Shepard became Wodja’s psychotherapy and anger

management treatment providers, respectively. On August 3, 2012, Wodja filed a motion for

visitation in which he argued that he had complied with all court-ordered requirements.

Harkenrider opposed the motion and on September 12, 2012, Judge Nelson entered an order

denying Wodja’s motion and finding that there had not yet been a substantial change of

circumstances that gave the court adequate cause to modify the parenting plan. The trial court

found “very little change in Mr. Wodja’s ability to manage his anger or change his focus and

beliefs about issues involving the children and the proper parenting of them.” CP at 68. But the

court did express renewed hope that further counseling may help Wodja demonstrate the kind of

change in circumstances that could support a petition to modify the parenting plan. Included in

this order denying visitation was a list of factors that, if established, would prompt the court to

reconsider the visitation issue.

       In September 2013, Wodja filed a petition to modify the parenting plan. Along with his

petition, Wodja included a proposed parenting plan that provided for contact between Wodja and

his children. The proposed plan contemplated various “stages” of increasing contact, beginning

with telephone and Skype video contact, and concluding with physical visitation following

reconciliation counseling.

       The trial court scheduled a hearing before a superior court commissioner to provide Wodja

an opportunity to demonstrate that he had established adequate cause to proceed to a modification

hearing. Before the February 2014 hearing, Wodja filed a supplemental declaration in which he


                                                3
No. 46424-1-II


discussed the progress that he made through his counseling and treatment efforts. Based on these

facts, in conjunction with supporting letters from Wodja’s treatment providers, the commissioner

found adequate cause to proceed to a modification hearing.

       Harkenrider then moved for revision of the adequate cause finding. In the meantime, Judge

James Orlando had assumed jurisdiction over the case. Unpersuaded that Wodja had established

adequate cause to proceed, Judge Orlando granted Harkenrider’s motion, revising the

commissioner’s ruling and denying Wodja’s motion for adequate cause.

       Retaining jurisdiction, the court entered an order appointing Sheri Nakashima to serve as

GAL and instructed Nakashima to speak with van Pul and Shepard regarding Wodja’s treatment.

The court also directed Nakashima to speak to the person (CT) who had provided counseling

services to Wodja’s children1 and, ultimately, to inform the trial court as to whether reconciliation

counseling would be in the children’s best interests. The trial court instructed the parties to return

to the court for a new adequate cause hearing once Nakashima submitted her report.

       As ordered, Nakashima interviewed van Pul and Shepard. According to van Pul, she and

Wodja mutually decided to end treatment at the end of the one-year period. During that time, van

Pul noted that Wodja was at times “aggressive and obnoxious” when he did not get his way and

that such an attitude is not conducive to a parent-child relationship. CP at 282. Van Pul explained

that although Wodja was initially resistant, he “did quite well in the [therapeutic] process” and

made a “substantial amount of progress.” CP at 283.



1
 The trial court permitted the identity of this person to remain anonymous ostensibly to preclude
Wodja from being able to locate Harkenrider, whose specific location was purposely kept
confidential. Accordingly, Nakashima referred to the counselor as “CT” (children’s therapist).
CP at 279. CT is also used throughout this opinion for consistency.

                                                  4
No. 46424-1-II


       Discussing her recommendation to lift the no-contact order, van Pul described her belief

that children benefit from contact with both parents and that once therapy ended in May 2013, van

Pul’s treatment goals had been met. In van Pul’s view, Wodja did not pose a risk to the children

and she did not believe that Wodja would intentionally engage in harmful conduct.

       Shepard recalled having engaged in six two-hour anger management sessions with Wodja.

According to Shepard, Wodja’s primary issue was narcissistic behavior, which was a concern

because such behavior makes it difficult for “[Wodja] to see outside of himself.” CP at 286.

Shepard described Wodja as cooperative and remarked about his ability to articulate the ways in

which he applied the skills he learned. Shepard believed that there was no need for Wodja to

continue his anger management treatment, but she opined that Wodja should continue with

counseling that focused on his personality disorders.

       Nakashima also conducted two interviews with CT. CT described her initial meetings with

the children, who, in CT’s view, were “hyper-vigilant.” CP at 288. The children displayed post-

traumatic stress disorder symptoms and the younger child reported a number of disturbing

incidents that she experienced in Wodja’s presence. Wodja’s daughter, who CT described as

“fragile,” reported to CT that Wodja had once held a gun to her head. CP at 289. The youngest

child had also been drawing images of naked people in a journal, which featured anatomically

correct depictions of adult male genitals.

       CT stated that one child expressed a desire to avoid contact with Wodja while the other

sometimes does and sometimes does not want contact. According to Nakashima, CT was adamant

that reunification counseling would not serve the best interests of the children at the time of the

interview or in the “forseeable future.” CP at 291.


                                                5
No. 46424-1-II


       Summarizing her conclusions, Nakashima recognized that Wodja had made progress per

his treatment providers, but noted that there had been no recent declarations from objective sources

by which she could ascertain whether the treatment objectives had been implemented long term.

Nakashima found CT’s recommendations compelling.            Based primarily on CT’s interview,

Nakashima informed the court that she did not recommend reunification counseling at the time of

her report.

       Following the submission of Nakashima’s report, the trial court conducted a new adequate

cause hearing. In light of Nakashima’s report, Wodja urged the court to continue the adequate

cause determination so that he could return to van Pul to resume therapy treatment. But the trial

court declined to do so, finding, based primarily on Nakashima’s interview with CT that contact

with Wodja was not in the children’s best interest. Accordingly, the court ruled that Wodja had

not established adequate cause to proceed and dismissed Wodja’s modification petition.

       Wodja then filed a motion for reconsideration. The trial court denied Wodja’s motion and

granted Harkenrider’s simultaneous request for attorney fees based on what it deemed vexacious

litigation and “what [the trial court] believe[d] to be an unnecessary motion for reconsideration.”

Report of Proceedings (RP) (May 23, 2014) at 8. Wodja appeals, challenging the trial court’s

ruling regarding adequate cause, the procedure it employed to reach this determination, and the

fees it awarded as a result.




                                                 6
No. 46424-1-II


                                            ANALYSIS

                                       I. ADEQUATE CAUSE

                                     A. STANDARD OF REVIEW

       Trial court decisions in dissolution proceedings will seldom be changed on appeal. In re

Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); In re Marriage of Jannot, 110 Wn.

App. 16, 21, 37 P.3d 1265 (2002), aff’d, 149 Wn.2d 123, 65 P.3d 664 (2003). An appellate court

may overturn a trial court’s adequate cause determination only if the trial court has abused its

discretion. Jannot, 149 Wn.2d at 126. We will not reverse the decision unless the court’s reasons

are untenable. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). 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; and 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. In re Marriage of Zigler,

154 Wn. App. 803, 808-09, 226 P.3d 202 (2010).

                                  B. MODIFICATION PROCEDURE

       Wodja contends that the trial court abused its discretion by misinterpreting the required

modification procedure. Specifically, Wodja argues that the trial court abused its discretion by

appointing a GAL before, rather than after the adequate cause hearing and because it relied on her

report, which Wodja asserts was improper because the report is not an affidavit. We disagree.

       Parenting plan modifications require a two-step process set out in RCW 26.09.260 and

.270. Only the first step is at issue here. Before a trial court modifies a parenting plan, the moving

party must produce affidavits showing adequate cause for modification before the court will permit


                                                  7
No. 46424-1-II


a full hearing on the matter. RCW 26.09.270; Link v. Link, 165 Wn. App. 268, 275, 268 P.3d 963

(2011). “Adequate cause” means evidence sufficient to support a finding on each fact that the

movant must prove in order to modify; otherwise, a movant could harass a nonmovant by obtaining

a useless hearing. In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004).

       Here, Wodja first argues that the trial court erred by appointing Nakashima to serve as

GAL prior to making any finding regarding adequate cause.             Wodja asserts that this was

“backwards procedure,” Br. of Appellant at 21, but he cites no authority to suggest that a trial court

abuses its discretion when it appoints a GAL to further inform its adequate cause determination.

       Instead, there is helpful authority to the contrary. In dissolution proceedings involving

minor children, trial courts “may order an investigation and report concerning parenting

arrangements for the child, or may appoint a [GAL] pursuant to RCW 26.12.175, or both.” RCW

26.09.220(1)(a); Dugger v. Lopez, 142 Wn. App. 110, 118, 173 P.3d 967 (2007).                   RCW

26.12.175(1)(a) provides,

       The court may appoint a [GAL] to represent the interests of a minor or dependent
       child when the court believes the appointment of a [GAL] is necessary to protect
       the best interests of the child in any proceeding under this chapter.

Accordingly, the statutory scheme permits trial court’s to appoint GALs in its discretion and,

therefore, it was not improper for the court here to have done so.

       Second, Wodja asserts that the trial court abused its discretion by relying in part on

Nakashima’s report to decide whether Wodja had established adequate cause to proceed to a




                                                  8
No. 46424-1-II


modification hearing.2 Wodja cites language from RCW 26.09.270 to suggest that the trial court

misunderstood the necessary procedure because Nakashima’s report was not an affidavit.

       But Wodja misreads the controlling statute. Under RCW 26.09.270, it is Wodja’s burden

to submit affidavits that set forth facts to support the modification he requests. The trial court is

also expressly permitted to consider affidavits from the party opposing the modification. RCW

26.09.270. Both parties submitted such affidavits here and there is nothing in the record to suggest

that the trial court did not consider those documents.

       The fact that this particular statute does not specifically mention GAL reports is immaterial

because other provisions within the same chapter specifically authorize courts to order such

investigations and reports. RCW 26.09.220 (permitting courts to order investigations and reports

and stating that those reports may be made by a GAL). Accordingly, we hold that the trial court

properly applied the applicable statutory procedure. Thus, Wodja’s argument fails.

                           C. REVISION OF ADEQUATE CAUSE FINDING

       Wodja next argues that the trial court abused its discretion by ruling that there was not

adequate cause to proceed to a modification hearing because he has completed the treatment

ordered in the original parenting plan. Wodja argues further that there was no basis for the court




2
  To the extent that Wodja argues that the trial court erred by relying on Nakashima’s report
because it contained statements that constitute hearsay testimony, his argument fails. Division
One of this court has addressed a similar argument based on GAL reports under a different but
similar statutory scheme governing guardianship proceedings. See In re Guardianship of Stamm
v. Crowley, 121 Wn. App. 830, 837, 91 P.3d 126 (2004). Division One reasoned that because the
statute at issue there required GALs to consult with those knowledgeable about the incapacitated
person, it necessarily contemplated that hearsay would be a basis for a GAL’s opinions. Stamm,
121 Wn. App. at 837. The same is true here in that the GAL clearly must speak to counselors and
treatment providers who are knowledgeable concerning the parties’ mental health and well being.

                                                 9
No. 46424-1-II


to “deny adequate cause after a Family Law Commissioner found adequate cause.” Br. of

Appellant at 19. Again we disagree.

       “The actions of a superior court commissioner are subject to revision by a superior court

judge.” State v. Lown, 116 Wn. App. 402, 407, 66 P.3d 660 (2003) (citing RCW 2.24.050; State

v. Smith, 117 Wn.2d 263, 268, 814 P.2d 652 (1991)). The revision court sits in the same position

as this court. Lown, 116 Wn. App. at 407. Accordingly, if a party challenges the commissioner’s

findings of fact and conclusions of law, the revision court reviews the findings for substantial

evidence and the conclusions of law de novo. Lown, 116 Wn. App. at 407-08.

       But the revision court’s scope of review is not as limited as this court’s. In re Marriage of

Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004). Rather, the revision court has full jurisdiction

over the case and is authorized to determine its own facts based on the record before the

commissioner. Dodd, 120 Wn. App. at 644. A revision court may, based upon an independent

review of the record, redetermine both the facts and legal conclusions drawn from the facts. Dodd,

120 Wn. App. at 645.

       Here, the trial court, in its role as the revision court, heard argument and considered the

facts, but disagreed with the court commissioner’s legal conclusion that Wodja had established

adequate cause to proceed to a full modification hearing. In the trial court’s view, there was

uncertainty regarding how well Wodja’s progress in treatment would translate to the “real world

in a parenting context based upon these relatively minimal evaluations that he’s had.” RP (March

14, 2014) at 7. Accordingly, the trial court granted Harkenrider’s motion and revised the

commissioner’s ruling, finding, based on the existing record, that Wodja had not established

adequate cause. This was not error.


                                                10
No. 46424-1-II


       The trial court then appointed Nakashima and conducted its own adequate cause hearing.

Ultimately, the trial court ruled that a finding of adequate cause—and therefore modification of

the parenting plan—was premature because of the level of trauma being reported by Wodja’s

children to their counselor. And because adequate cause determinations are fact intensive, our

Supreme Court has recognized that trial judges, who generally evaluate fact-based domestic

relations issues more frequently than this court, are entitled to deference upon review. Jannot, 149

Wn.2d at 127.

       Wodja argues further that the trial court abused its discretion by ruling that Wodja had not

established adequate cause because “[Wodja] has completed all of the treatments required of him”

and “[t]here is nothing more [he] can do to comply with the court’s original Final Parenting Plan.”

Br. of Appellant at 17-18.

       Wodja appears to refer to the following “other provisions” contained in the parenting plan:

       Prior to the court allowing any contact between the father and children he shall
       comply with the recommendations of Dr. Mark Whitehill which include:
       1. Twelve months of weekly individual psychotherapy with Michael Compte to
       address Father’s personality disorders as set forth in Dr. Whitehill’s report.
       2. Successful completion of a course in anger management with Bill
       Notarfrancisco.

CP at 7. It is undisputed that Wodja did in fact complete the aforementioned treatment.

       But in context, it is clear from the trial court’s parenting plan provisions and from the

accompanying findings of fact and conclusions of law, that the trial court was unwilling to permit

contact between Wodja and his children until he accomplished at least this recommended

treatment. Elsewhere in the parenting plan, the trial court referenced the need for a future hearing

and its willingness to assess Wodja’s progress in treatment to the extent that it would allow a

change in the no-contact provision.

                                                11
No. 46424-1-II


       The court suggested that Wodja file a petition to modify the parenting plan and to note a

hearing for adequate cause. Although the trial court conditioned any future contact with the

children on Wodja’s treatment progress and implied a willingness to consider a modification at

that point, the court did not suggest that it would automatically grant Wodja that right upon

completion of the terms it set forth. Custodial changes are viewed as highly disruptive to children,

and there is a strong presumption in the statutes and case law in favor of custodial continuity and

against modification. McDole, 122 Wn.2d at 610.

       And merely because the court suggested that it would consider contact after completion of

some mental health treatment does not absolve Wodja of the requirement that he demonstrate

adequate cause followed by a showing of substantial change in circumstances. The court here

ruled that, in its view, Wodja has yet to show adequate cause based primarily on the fact that a

change in the parenting plan is not in the children’s best interest. Accordingly, we hold that the

trial court did not base its decision on manifestly unreasonable or untenable grounds and, therefore,

the court did not abuse its discretion by declining to find adequate cause.

                          II. DEPRIVATION OF CONSTITUTIONAL RIGHTS

       Wodja contends that the trial court’s dismissal of his modification petition violated his right

to due process under the Fourteenth Amendment because the trial court effectively terminated his

parental rights “without any recourse.” Br. of Appellant at 33. We reject Wodja’s argument.

       The due process clause of the Fourteenth Amendment includes a substantive component

that “provides heightened protection against government interference with certain fundamental

rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138

L. Ed. 2d 772 (1997). The United States Supreme Court has recognized that perhaps the oldest of


                                                 12
No. 46424-1-II


these fundamental liberty interests is the interest of parents in the care, custody, and control of

their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

       But a parent’s rights may be subject to limitation if it appears that parental decisions will

jeopardize the health or safety of the child. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S. Ct.

1526, 32 L. Ed. 2d 15 (1972). RCW 26.09.191(2)-(3) reflects our legislature’s recognition of this

fact. RCW 26.09.191(3) authorizes a trial court to completely preclude a parent’s residential time

if certain factors exist. See also In re Marriage of Underwood, 181 Wn. App. 608, 611, 326 P.3d

793, review denied, 181 Wn.2d 1029 (2014).

       In support of its decision to restrain Wodja’s residential time with his children, the trial

court relied on three of these factors: (1) a long-term emotional or physical impairment which

interferes with the performance of parenting functions as defined in RCW 26.09.004(2), (2) the

absence or substantial impairment of emotional ties between the parent and children, and (3) the

abusive use of conflict by the parent which creates the danger of serious damage to the children’s

psychological development.

       Wodja does not argue that a trial court lacks the discretion to preclude contact on this basis.3

He fails to reconcile the presence of these findings with the assertion that he has been denied his

right to due process. Furthermore, Wodja does not challenge the constitutionality of RCW




3
  There is only one relevant assignment of error with regard to Wodja’s claim that his parental
rights have been terminated. Wodja states that “there is not findings of any mandatory [RCW
26.09].191 restrictions in Section 2.1 of the parenting plan.” Br. of Appellant at 8. But Wodja
ignores that the RCW 26.09.191(3) factors permitting the court to preclude his contact with his
children are contained in section 2.2.

                                                 13
No. 46424-1-II


26.09.191(3) on its face nor does he question the constitutional validity of the statute as applied to

him.

       Secondarily, as a practical matter, the trial court’s ruling did not terminate Wodja’s parental

rights because it did not foreclose all possibility of a future modification. The court referenced the

possibility of reunification when the children’s counseling, and Wodja’s own continued treatment,

have progressed satisfactorily. For the foregoing reasons, we hold that Wodja’s deprivation of due

process and parental termination arguments fail.

                                        III. ATTORNEY FEES

                                       A. TRIAL COURT FEES

       Wodja asserts that the trial court’s award of attorney fees was improper because the court

made no finding of bad faith pursuant to RCW 26.09.260(13).4 We hold that the trial court did not

abuse its discretion by awarding Harkenrider fees because intransigence is a permissible ground

on which to base such an award.5

       We review attorney fee award decisions for an abuse of discretion. In re Marriage of Coy,

160 Wn. App. 797, 807, 248 P.3d 1101 (2011). A trial court abuses its discretion if its decision is

based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-

47, 940 P.2d 1362 (1997).




4
  Wodja does not challenge the amount of fees that the trial court awarded. Rather, his argument
is that any award of fees generally was improper.
5
  Wodja also asserts that the trial court abused its discretion by ordering him to pay the costs
associated with Nakashima’s services as GAL, but he dedicates no portion of his opening brief to
any argument as to how the trial court’s ruling was manifestly unreasonable in this regard. We
therefore decline to address GAL costs specifically. RAP 10.3(a)(6).
                                               14
No. 46424-1-II


       Aside from the available statutory bases, Washington courts have recognized intransigence

as a basis for attorney fees in dissolution proceedings. In re Kelly, 170 Wn. App. 722, 739-40, 287

P.3d 12 (2012), review denied, 176 Wn.2d 1018 (2013). “Intransigence” may be shown by

“litigious behavior, bringing excessive motions, or discovery abuses.” In re Marriage of Wallace,

111 Wn. App. 697, 710, 45 P.3d 1131 (2002). If intransigence is demonstrated, the financial status

of the party seeking the award is not relevant. In re Marriage of Mattson, 95 Wn. App. 592, 604,

976 P.2d 157 (1999).

       Here, Wodja argues that the trial court abused its discretion by awarding fees under either

of two statutory alternatives because (1) it made no finding of bad faith pursuant to RCW

26.09.260(13), and (2) it did not consider the parties’ present financial resources for purposes of

RCW 26.09.140. But the court granted Harkenrider’s fee request based on what it characterized

as Wodja’s vexatious litigation and “what [the trial court] believe[d] to be an unnecessary motion

for reconsideration.” RP (May 23, 2014) at 8. The trial court awarded fees after Wodja brought a

motion for reconsideration that he supported with a letter from van Pul that provided no new

information. Thus, in the court’s view, this letter did nothing to have any meaningful effect on the

court’s previous ruling. Accordingly, we hold that the trial court did not abuse its discretion by

awarding fees based on Wodja’s intransigence. Kelly, 170 Wn. App. at 739-40.

                                       B. APPELLATE FEES

       Harkenrider requests attorney fees pursuant to RCW 26.09.140, which provides for a

discretionary award of appellate attorney fees. But she did not file an affidavit of financial need

contrary to RAP 18.1(c). Accordingly, we decline to award her fees on this basis.




                                                15
No. 46424-1-II


        Alternatively, Harkenrider requests fees for defending a frivolous appeal pursuant to RAP

18.9. An appeal is frivolous if it is so totally devoid of merit that there is no reasonable possibility

of reversal. In re Marriage of Tomsovic, 118 Wn. App. 96, 109-10, 74 P.3d 692 (2003). The fact

that an appeal is unsuccessful is not dispositive. Tomsovic, 118 Wn. App. at 110. We consider

the record as a whole and resolve all doubts in favor of Wodja as the appellant. Tomsovic, 118

Wn. App. at 110. Here, Wodja’s arguments are unpersuasive, but his appeal is not so totally devoid

of merit that there is no reasonable possibility of reversal. We decline to award fees on this basis.

        In summary, the trial court did not abuse its discretion in any respect and we affirm the

dismissal of Wodja’s modification petition and the trial court’s award of attorney fees. However,

we decline to award attorney fees on appeal.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                       JOHANSON, C.J.
 We concur:



 WORSWICK, J.




 MELNICK, J.




                                                  16
