                                                                                                                              FILED
                                                                                                                           RI OF APPEALS
                                                                                                                           DIVISION II
                                                                                                                20140JUL 15 Aid10: $43
          IN THE COURT OF APPEALS OF THE STATE OF WASH
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In   re   the Marriage   of:                                                                  No. 43633 -7 -II


PAUL DAVID SHOEMAKER,


                                       Appellant,


      and                                                                             UNPUBLISHED OPINION


DAWN MARIE SHOEMAKER,


                                           Respondent.


            MELNICK, J. —         Paul David Shoemaker appeals the orders filed in this dissolution


proceeding, arguing that the trial               court (    1)    lacked the personal and subject matter jurisdiction


necessary to       enter   the    orders, (     2)    lacked sufficient evidence to impose the parenting plan

restrictions    against    him,   and (    3)   violated       his due     process    right   to   a   fair trial.       Shoemaker also


seeks to supplement the record on appeal, and in his reply brief requests an award of fees, costs,

and sanctions against          his former       wife, now         known       as   Dawn Marie Harris.          Harris requests fees


and costs on appeal.           Because Shoemaker sought relief from the Kitsap County Superior Court

and is a resident of Washington as well as a member of the armed forces stationed in

Washington, the         superior court      had      personal and subject matter             jurisdiction in this          case.       We see


no    violation    of   Shoemaker'     s    right     to   a     fair trial    on   this   record.       We deny his motion to

supplement the record as well as his untimely request for fees, costs, and sanctions, and we grant

Harris'     s request   for fees based     on   Shoemaker'          s   intransigence. Affirmed.
43633 -7 -II



                                                                 FACTS


          The   parties married          in Tacoma in 2004, shortly              after     the birth    of   their   son,   E. S.   During

the   proceedings at        issue, Shoemaker            was   a member of        the United States Air Force.'                 On March


16, 2006, Shoemaker filed a petition for legal separation in Kitsap County, stating that " this court

has jurisdiction           over [    Harris]   because [ Harris            and   Shoemaker'       s]    home state of record is


Washington."          Clerk'     s   Papers ( CP)   at   704.        Harris subsequently filed a dissolution petition in

Pierce County, and Shoemaker obtained an ex parte order and temporary parenting plan in

Kitsap County that granted him temporary custody of E. S.

          In June 2006, the parties signed an agreed order that dismissed Harris' s Pierce County

dissolution petition, continued Shoemaker' s legal separation action filed in Kitsap County, and

reaffirmed the temporary parenting plan. The order further stated that the parties were moving to

Utah and were attempting to reconcile. The parties then moved together to Utah.

          In February 2008, the Kitsap County court dismissed the case for want of prosecution. In

2009, the       parties      and     their   son   moved        to   Japan   where         Shoemaker         was     deployed.       After


approximately          a   year,     Harris wanted to end the marriage and tried to file the necessary

paperwork       to   return   to the United States            with   E. S. On September 10, 2010, Shoemaker obtained


an ex parte order reinstating the dissolution case and again declaring that the Kitsap County court

had jurisdiction because Kitsap County was his " designated home even though he is assigned out

of    state   and    out    of   the country       by   the military."           CP   at   705.        In an attached declaration,


Shoemaker stated that his " home address of record" was in Bremerton. CP at 355.




  In a recent affidavit, Shoemaker states that he was medically discharged on June 3, 2013.
                                                                       2
43633 -7 -II




          Unbeknownst to Harris, the ex parte order also reactivated the temporary parenting plan.

Based on this ex parte order, Shoemaker attempted to have Harris removed from the house and


took custody of their son.

          On October 20, 2010, Harris obtained an ex parte restraining order placing E. S. in her

custody      and      authorizing her to take E. S. if             she     had to leave Japan.            On October 25, 2010, a


temporary restraining order issued prohibiting either party from taking E. S. out of Japan without

further   court order.       On October 29, 2010, an agreed parenting plan was signed granting Harris

custody      and      giving Shoemaker           alternate weekends and             splitting holidays.         The order stipulated


that E. S.     could not     leave Japan           without      further    order.     The court issued a contemporaneous


restraining order enjoining each party from disturbing the peace of the other party or any child.

This court denied discretionary review of the order denying Shoemaker' s motion for

reconsideration. By this time, Shoemaker had fired two attorneys and represented himself.

          In    January     2011,     Shoemaker began harassing Harris and refusing to return E. S. after

weekend        visits.     On   one   occasion          he failed to       return   E. S. for     over    two   weeks.   Shoemaker


threatened to move back into Harris' s house and several times came over and refused to leave.

Shoemaker          cancelled    Harris'     s    cell   phone    and   internet      service.      The trial court described his


behavior       as "   increasingly    odd,      hostile,   and   bizarre."     CP     at   705.    On January 20, 2011, the Air

Force issued a no contact order forbidding Shoemaker from having any contact with Harris or

their son.


          On February 11, 2011, the Kitsap County court held Shoemaker in contempt for violating

the 2010 parenting           plan     and       restraint provisions        but     provided      purge   provisions.    With court


permission, Harris          took E. S. out of Japan.              The court further ordered Shoemaker to give Harris


the   child' s passport and         any     other       documents necessary to             remove   him from Japan.       The court

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also issued a warrant for . Shoemaker' s arrest and ordered him to pay child support and

maintenance.




          Despite the court orders and orders from his commanding officer, Shoemaker failed to

cooperate and          did   not provide   Harris   with   E. S.'   s passport.      Harris, stranded in Japan, left only

after Shoemaker' s commanding officer personally gave her the child' s passport. Shoemaker also

refused to comply with the orders to pay Harris child support, maintenance, and attorney fees.

          Following an investigation of two separate incidents, an Air Force commander issued

reports   finding      that Shoemaker'      s   behavior      met   the   criteria   for "   child emotional maltreatment"



and " adult emotional maltreatment."                CP   at   706.      On March 10, 2011, Shoemaker was arrested


after   failing   to   appear.   to   show cause    why he       should not      be held in      contempt of court.   After


posting bail, he was booked and released.

          On March 31, 2011, Shoemaker filed for divorce in Utah. The Utah court dismissed the


action and stated in its order that Washington State had exclusive and continuing jurisdiction.

This order was upheld on appeal. Shoemaker v. Shoemaker, 265 P. 3d 850 ( Utah Ct. App. 2011).

A federal district court subsequently dismissed two lawsuits Shoemaker filed against Harris,

several Kitsap County judges, multiple Kitsap County employees, and several other parties.

          On August 19, 2011, the Kitsap County court granted an order compelling Shoemaker to

respond to Harris' s interrogatories and request for production of documents, and also awarded

terms.    Shoemaker          never complied with      this     order.     At a settlement conference on December 7,


2011, Harris and her attorney appeared in person and Shoemaker appeared telephonically. Notice

of the trial date was sent to Shoemaker' s last three known addresses.




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43633 -7 -II



             Shoemaker did          not appear when         the trial began      on   Monday,       March 5, 2012. His mother


informed the court that Shoemaker had been denied permission to leave Fort Lewis for any court

hearings during the past year and that he was being taken to the Fort Lewis Clinic for heart tests.

The court observed that Shoemaker had received notice of the trial date and had appeared at prior

hearings       within    the    past   year.        The court also noted that there was no verification of his


whereabouts.           The    court allowed         the   case    to   proceed   by   default,      and   Harris testified.     Before


adjourning for the day, the court informed Shoemaker' s mother that trial would resume the next

morning and that Shoemaker could either appear or provide verification from military personnel

that   a medical condition            had   prevented       his   appearance on       the   first   day    of   trial.   When Harris' s


attorney explained that his client would be returning to New York on Thursday and asked for

completion of the trial by then, the court reconfirmed that the trial would resume the following

morning.


             Shoemaker did          not appear      for   court   the   next   morning. When his mother asserted that he


had been           confined    to   quarters   for 48 hours due to "             severe   medical         stress,"   Harris' s attorney

responded that Shoemaker had not sought medical treatment until 5: 00 P. M. the previous day.

CP     at   695.    The trial judge spoke with a military officer who confirmed that Shoemaker had been
                                                2
confined       to   quarters   for 48 hours.         After Harris completed her testimony, the court continued the

trial to March 14 and ruled that Harris would be allowed to appear telephonically due to

Shoemaker' s unexcused absence the previous day.




2
    The order showed that Shoemaker was confined to quarters from 7: 00 A.M. on March 6 through
7: 00 A.M. on March 8.
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43633 - -II
      7




         Shoemaker       appeared       on   March    14   and   testified   on   his   own   behalf.   Although he


challenged the court' s jurisdiction, he admitted during cross examination that he had a current

Washington driver' s license and that he had signed court filings stating that his home of record

was Kitsap County. Shoemaker' s mother also testified.

         The trial court subsequently issued a lengthy memorandum decision setting forth the

above facts and ruling that it had jurisdiction over Shoemaker because of his efforts to seek

Washington jurisdiction. The court also ruled that Shoemaker' s residential time with E. S. would

be   restricted   to   allow   only    written   communication       monitored     by   Harris.   The court left the


restraining order in place because Shoemaker had withheld E. S. from Harris in violation of court

orders and had stalked, intimidated, and harassed Harris.


         The court found no evidence that either party' s income had changed since entry of the

temporary decree of dissolution and noted that Shoemaker had refused to comply with repeated

discovery     requests   seeking      current   financial information.       The court ordered Shoemaker to pay

approximately $ 25, 000 in unpaid child support and maintenance, and it based his ongoing child

support obligation on          the 2010 information        he had   provided earlier.     The court awarded Harris


 45, 000 in attorney fees based on Shoemaker' s intransigence and bad faith, and it imposed

sanctions of $9, 250 for Shoemaker' s failure to provide discovery.

         Shoemaker now appeals.


                                                      ANALYSIS


I.       JURISDICTION


         Shoemaker argues that the Kitsap County court lacked both personal and subject matter

jurisdiction because neither the parties nor their son have lived in Washington since 2006.




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            Jurisdiction is        an   issue   of   law that      we review       de   novo.    Worden v. Smith, 178 Wn. App.

309, 328, 314 P. 3d 1125 ( 2013);                    Cole v. Harveyland, LLC, 163 Wn. App. 199, 205, 258 P. 3d 70

2011).       Jurisdiction is the power of a court to hear and determine a case and consists of personal


and subject matter jurisdiction.. In re Marriage ofBuecking, 179 Wn.2d 438, 447, 316 P. 2d 999

2013).


            Shoemaker possesses a Washington driver' s license and has alleged that Washington is


his home         state    in his   petition and          subsequent pleadings.               Moreover, when the Kitsap County

court dismissed the dissolution proceeding in 2008 for want of prosecution, Shoemaker moved to

have the        petition reinstated.          Because Shoemaker sought its jurisdiction on multiple occasions,


the   Kitsap County             court   had   personal      jurisdiction     over    him.     See Worden, 178 Wn. App. at 328

 party can consent to personal jurisdiction in an action by taking action that fairly invites the

court to resolve a dispute between it and another party).

            The trial court found that it had personal jurisdiction over Harris because ( 1) the parties

lived in Washington              during   their    marriage; (      2) Shoemaker continues to reside, or be a member of


the armed forces stationed, in this state; and ( 3) the parties may have conceived a child while in

Washington.              As the long -arm statute provides, such contacts submit a nonresident to the

jurisdiction       of    Washington       courts.        RCW 4. 28. 185( 1)(       e), (   f). The court had personal jurisdiction


over both parties.


            A   court    has    subject matter          jurisdiction if it   can     hear    a particular class of case.   Buecking,

179 Wn.2d          at    448.    The Washington Constitution grants superior courts original jurisdiction in

divorce      matters.           WASH. CONST.             article   IV, §     6;    Buecking, 179       Wn.2d    at   449 -50.   RCW


26. 09. 030 adds a residency requirement to this exercise of jurisdiction by requiring a party who

files   a   dissolution     petition     to   be ( 1)    a resident of   this     state, (   2) a member of the armed forces who

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43633 -7 -II




is stationed in this state, or ( 3) married to a party who is a resident of this state or a member of

the armed forces and stationed in this state. In re Marriage ofRobinson, 159 Wn. App. 162, 168,

248 P. 3d 532 ( 2010) ( quoting RCW 26. 09. 030);                  see Buecking, 179 Wn.2d at 452 ( residency

requirement of RCW 26. 09. 030 must be met for court to exercise jurisdiction over dissolution


proceeding).        Shoemaker is a resident of this state as well as a member of the armed forces

stationed in Washington. The court had subject matter jurisdiction over these proceedings.


           Shoemaker makes several references to the Uniform Child Custody Jurisdiction and

Enforcement Act ( UCCJEA) in challenging the                   court' s   jurisdiction. As the Supreme Court has


explained,


           The UCCJEA arose out of a conference of states in an attempt to deal with the
           problems of competing jurisdictions entering conflicting interstate child custody
           orders, forum shopping, and the drawn out and complex child custody legal .
           proceedings often encountered by parties where multiple states are involved. It is,
           in a sense, a pact among states limiting the circumstances under which one court
           may modify the orders of another.

In   re   Custody   of A. C., 165 Wn.2d 568, 574, 200 P. 3d 689 ( 2009) ( footnote             omitted) (   internal


citations omitted).        The UCCJEA is not at issue because no other state is attempting to modify

the orders issued in this case.


           Shoemaker also refers to the divisible divorce doctrine, which recognizes that divorce

proceedings .     typically    contain   two     components:       the dissolution of the marital status and the


adjudication of         the " incidences"   of   the   marriage.    Kelly v. Kelly, 759 N.W.2d 721, 723 ( N.D.

2009); 20 KENNETH WEBER, WASHINGTON PRACTICE:                               FAMILY AND COMMUNITY PROPERTY


LAW, § 30. 4,      at   16 ( 1997).   Each component has a separate jurisdictional foundation. Kelly, 759

N.W.2d      at   723.    While a court need not have personal jurisdiction over both parties to dissolve

the marriage, it must have personal jurisdiction over both parties to adjudicate matters of


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alimony or spousal support, the division of property, the right to child custody, and an award of

child support.       Kelly, 759 N.W.2d           at   723; 20 WASH. PRAC., § 30. 4,        at   16. Other states need not


recognize orders adjudicating the latter matters where the entering court lacked personal

jurisdiction    over one      of   the   parties.      Conlon v. Schweiker, 537 F. Supp. 158, 162 ( N.D. Tex.

1982).    The divisible divorce doctrine is not relevant here because the trial court had personal

jurisdiction over both parties.


II.       PARENTING PLAN AND CHILD SUPPORT


          Shoemaker next challenges the sufficiency of the evidence supporting the parenting plan

restrictions as well as the award of child support.



          We begin our review by observing that 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).    Such decisions will be upheld unless they demonstrate a manifest abuse of discretion. In

re Marriage ofLandry, 103 Wn.2d 807, 809, 699 P. 2d 214 ( 1985).

          In   fashioning      a   parenting          plan,    the court' s discretion must be guided by several

provisions      of   the   Parenting     Act   of     1987 (   ch.   26. 09 RCW),   including    RCW 26. 09. 191.   In re


Marriage of Katare, 175 Wn.2d 23, 35 -36, 283 P. 3d 546 ( 2012), cent. denied, 133 S. Ct. 889


 2013).    This statute requires a court to limit a parent' s residential time with the child if that

parent has engaged in physical, sexual, or emotional abuse of the child or if that parent' s conduct


may have       an adverse effect on        the   child' s     best interests. RCW 26. 09. 191( 1), (   2), ( 3).


          The trial court found that restrictions on Shoemaker' s residential time with his son were

required because Shoemaker had engaged in the following conduct:




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          Willful abandonment that continues for an extended period of time or substantial
          refusal to perform parenting functions[.]

          Physical, sexual or a pattern of emotional abuse of a child.


          A   history   of acts of     domestic   violence ...     or an assault or sexual assault which

          causes grievous bodily harm or the fear of such harm.

CP   at   713 (   paragraph   2. 1).    The court also found that Shoemaker' s conduct might adversely

affect the child' s best interests because the following factors existed:

          Neglect or substantial nonperformance of parenting functions.

          A long -term emotional or physical impairment which interferes with the
          performance of parenting functions [.]

          The absence or substantial impairment of emotional ties between the parent and
          child.




          The abusive use of conflict by the parent which creates the danger of serious
          damage to the child' s psychological development.

CP   at   713 (   paragraph   2. 2).    Based on these findings, the trial court ruled that it would allow


Shoemaker only          written communication with        E. S.,   subject to Harris' s monitoring.

          In its memorandum decision, the court stated that the testimony and record provided

ample evidence to support its findings in paragraphs 2. 1 and 2. 2 of the parenting plan. The court

      described some of the evidence demonstrating why Shoemaker' s residential time with his

son would be completely restrained:

          On October 29, 2010, a temporary parenting plan was issued, establishing [ Harris]
          as the primary residential parent for the minor child.   On January 20, 2011,
           Shoemaker' s] Air Force Commander issued him a no contact order, forbidding
          him from contacting  either [ Harris] or the minor child. On February 11, 2011,
           Shoemaker]        was held in contempt of court after he violated the visitation
          provisions of the temporary parenting plan in effect at that time and withheld the
          minor     child   from [ Harris].       Because of this violation, .a temporary restraining
           order also was entered against him, proscribing any contact between [ Shoemaker]
           and his child and between [ Shoemaker] and [ Harris].   On February 15, 2011, a
           second of [Shoemaker' s] Air Force Commanders issued a determination finding
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43633 -7 -II




            that an investigation of [ Shoemaker' s]                   conduct met         the criteria    for both "   child

            emotional            maltreatment"       and "   adult   emotional       maltreatment." [        Shoemaker' s]

            behavior, exhibited during the course of this case and in his personal interactions
            with [      Harris]      and     minor    child,   reflects     a   pattern    of   harmful,   malicious,    and

            abusive decisions.


CPat708.


            Shoemaker now argues that the evidence is insufficient to support the court' s restrictions


on    his   contact with          E. S.    We cannot review this argument, however, because Shoemaker has not


provided a transcript of Harris' s testimony. A party seeking review has the burden of perfecting

the   record so         that this     court    has before it    all of    the evidence      relevant   to the issue.    Dash Point


Village Assoc.              v.   Exxon    Corp.,    86 Wn.   App.    596, 612, 937 P. 2d 1148 ( 1997).           Even though the


entire record          is    not required, "     those portions of the verbatim report of proceedings necessary to

present      the issues           presented     on review"      must     be     provided   to the   court.    Dash .Point Village


Assoc., 86 Wn.               App.   at    612 ( quoting RAP 9. 2( b)).          Harris' s testimony is essential to any review

of    the trial        court' s     residential     restrictions.     Because Shoemaker has not met his burden of


perfecting the record so that we may review his argument, we will not consider it further.

            Shoemaker also challenges the competency of the evidence supporting the child support

order.      In its memorandum decision, the trial court noted that the proposed child support order


mirrored         the   temporary          child support order.       There was no evidence that either party' s income

had changed; Shoemaker had refused to comply with repeated discovery requests, as well as an

order       to   compel,          that     sought    required    financial       information.       The court therefore listed


Shoemaker' s income according to the 2010 information he had provided for purposes of the

temporary child support order.




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43633 -7 -II




          RCW 26. 19. 071( 1)        provides   that "[ a] 11 income and resources of each parent' s household


shall be disclosed and considered by the court when the court .determines the child support

obligation of each parent."           If a parent fails to supply this information, the court must impute

income to that        parent.     RCW 26. 19. 071( 6).    Given Shoemaker' s refusal to meet his statutory

obligation and to comply with related discovery requests and court orders, we see no abuse of

discretion in the trial court' s decision to calculate child support based on the initial income

information he provided.


III.      DUE PROCESS


          Shoemaker argues further that he was denied his due process right to a fair trial for

several reasons. Here again, the lack of a complete record hampers our analysis.


          Several of Shoemaker' s complaints stem from the trial court' s decision to proceed with


Harris' s testimony in his absence. As the clerk' s minutes illustrate, Shoemaker did not notify the

court    that   he   would   be   absent on   March 5, the first   day   of   trial.    His mother informed the court


after the hearing began that Shoemaker did not have permission to leave his base for court

hearings.       When Harris' s attorney responded that Shoemaker had been returned from Japan so

that he could appear at trial, his mother told the court that he was being taken to a clinic for heart

tests.    Because Shoemaker had provided no verification that a medical condition prevented his

appearance, the court allowed Harris to testify.

          The clerk' s minutes reveal that the following day, Shoemaker' s mother informed the

court    that Shoemaker       was under medical stress and confined             to     quarters   for 48 hours. The court


eventually spoke to a sergeant who confirmed that Shoemaker had been confined to quarters for

48 hours.        The court allowed Harris to complete her testimony but continued further trial

proceedings to March 14.

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43633 -7 -II



             When Shoemaker appeared on March 14, he complained that he had not had a chance to


review       Harris'   s   exhibits.       The court responded that a copy of her exhibits had been left for

Shoemaker in court; Shoemaker' s mother apparently had refused to take them. Harris' s attorney

added that Shoemaker could have attended trial on March 5 because he went to the clinic that


evening and was not quarantined until the following morning. The court declined to continue the

trial   so   that Shoemaker       could review            Harris'   s exhibits.       When Shoemaker later complained that


he had no opportunity to cross examine Harris, the court responded that he had waived that right

by failing to        appear at   trial     on   March 5.        The court refused to continue the trial a second time so


that Shoemaker could obtain a transcript of Harris' s testimony.

             Shoemaker appears to argue that the trial court' s refusal to stay the proceedings violated

his   rights under         the Servicemembers            Civil Relief Act ( SCRA), 50                App.   U. S. C. A. §§ 501- 597( b).


The SCRA entitles a member of the United States armed services to a mandatory stay of court

proceedings when the servicemember is precluded from participating in such proceedings due to

active military duty. In re Marriage ofHerridge, 169 Wn. App. 290, 292, 279 P. 3d 956 ( 2012);

50      App.    U.S. C. A. §      522;          see    also    RCW      38. 42. 060 (      providing similar relief under the

Washington Service Members' Civil Relief Act). Where a servicemember has received notice of


an action       or   proceeding,       a    stay may be          obtained     at "   any   stage     before final judgment,"      either



 upon        application by      the   servicemember"             or   by   the   court " on   its   own motion."       Herridge, 169


Wn.     App.    at   297 -98 ( quoting 50             App.    USCA § 522( b)( 1)).         Here, Shoemaker' s absence was due


to illness rather than active duty. Moreover, he never filed the application necessary to trigger




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43633 -7 -II



relief under     the SCRA.    3 See Herridge, 169 Wn. App. at 299 ( application for stay must contain

specific information, and servicemember must comply expressly with the statute to be entitled to

stay).


         Instead of applying the SCRA, we review the trial court' s refusal to continue the trial for

abuse of   discretion. See In       re   Welfare of R. H., 176 Wn.              App. 419,   424, 309 P. 3d 620 ( 2013) (   we




review   denial     of continuance       for   abuse       of   discretion).      We see no abuse of discretion in the


court' s decision to allow the trial to proceed on March 5 in the wake of Shoemaker' s unexcused

absence.       Nor do we see any abuse of discretion in the trial court' s refusal to continue trial

beyond the initial        continuance    to March 14.           Shoemaker never sought to review Harris' s exhibits


before trial resumed on March 14, and he never sought to obtain a transcript of her testimony.

See In   re    Marriage of Olson, 69 Wn.             App.       621, 626, 850 P. 2d 527 ( 1993) ( pro se litigants are


held to same standards and rules of procedure as attorneys).


         Shoemaker also claims that he was denied the right to present evidence of Harris' s

wrongdoing       during    trial. The trial court sustained most of Harris' s objections to this evidence on


the basis that it was either hearsay or irrelevant, but the court did allow Shoemaker and his

mother    to    testify   about   some   instances     of       Harris'   s   alleged   misconduct.   We see no abuse of


discretion in the     court' s    limitation   of   this   evidence.          See Cole, 163 Wn. App. at 213 ( we review

evidentiary rulings for abuse of discretion).



3
    Shoemaker also appears to challenge entry of the 2011 contempt order and the 2010 parenting
plan as violations ofhis SCRA rights. Shoemaker filed a letter from his commanding officer on
February 11, 2011, stating that Shoemaker' s military service precluded his appearance at the
contempt hearing scheduled that day. When Shoemaker did not call in to court as promised, the
court issued the pending contempt order and warrant. The record does not show that Shoemaker
sought relief under         the SCRA in 2010.              His attempts to seek relief under the SCRA from the
2010 and 2011 orders are untimely as well as lacking in merit.
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43633 -7 -II



          Shoemaker         also alleges      that the trial court      was   biased    against   him. The court is biased


against a person' s case if it has a preconceived adverse opinion with reference to it, without just

grounds       or   before   sufficient      knowledge.        In re Borchert, 57 Wn.2d 719, 722, 359 P. 2d 789


 1961).       We presume that the trial court performed its functions without bias or prejudice.


Borchert, 57 Wn. 2d          at   722; In    re   Welfare of R. S. G.,   174 Wn. App. 410, 430, 299 P. 3d 26 ( 2013).

The fact that the trial judge               ruled   adversely does      not   demonstrate      prejudice.   See Rhinehart v.


Seattle Times Co., 51 Wn.                   App.    561, 579 -80, 754 P. 2d 1243 ( 1998) ( judge' s prior adverse


rulings      did   not   demonstrate necessary            prejudice   for   recusal    of   judge).   We see no evidence of


bias or prejudice on the record before us.


          Finally, Shoemaker complains that he did not have a jury trial and that his mother was

not   allowed       to   help     him   present     his   case.    Trial by jury is dispensed with in dissolution

proceedings.         RCW 26. 09. 010( 1).           And, while Shoemaker has the right to practice law on his


own behalf, he may not transfer this right to be a self -
                                                        represented litigant to another person who

is   not a   lawyer. State        v.   Hunt, 75 Wn.       App.    795, 807, 880 P. 2d 96 ( 1994).         We see no error in


this regard and no violation of Shoemaker' s right to a fair trial.

IV.          MOTION TO SUPPLEMENT RECORD


             Shoemaker      seeks      to   supplement      the   record with    the    following     materials:   handwritten


statements from Harris regarding crimes she has committed; affidavits from witnesses at the

hearing       of   August 19, 2011,           concerning the trial court' s prejudice and conflict of interest;

affidavits from a witness who attended trial on March 5 and 6 concerning judicial bad faith, bias

and denial of due process; documents erroneously shredded by the superior court clerks; and trial




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43633 -7 -II




court records inadvertently omitted from the original designation of clerk' s papers due to

 extreme confusion. "            4 Appellant' s Br. at 49.

          We may direct that additional evidence on the merits of the case be taken before deciding

a case on review if all of the following factors are satisfied:

           1)    additional proof of           facts is      needed   to   fairly   resolve    the    issues      on review, ( 2)

                                                                                the decision                   reviewed, ( 3)   it
          the    additional evidence would             probably       change                         being
          is    equitable   to    excuse a            s failure to     present      the   evidence     to the trial    court, ( 4)
                                               party'
          the remedy available to a party through postjudgment motions in the trial court is
          inadequate        or   unnecessarily          expensive, (   5) the appellate court remedy of granting
          a     new     trial    is inadequate          or    unnecessarily     expensive,           and (   6)    it would be
          inequitable to decide the case solely on the evidence already taken in the trial
          court.




RAP 9. 11(       a);   Mission Ins. Co.            v.   Guarantee Ins. Co.,          37 Wn. App. 695, 702, 683 P. 2d 215

 1984).         We reject Shoemaker' s contention that the documents he seeks to admit satisfy these

factors, and we deny his motion to supplement the record.

V.        FEES, COSTS, AND SANCTIONS


          Harris       argues    that   she   is   entitled   to   an award of      fees,   costs, and sanctions on appeal.          She


describes the behavior that justifies such an award as including Shoemaker' s filing of a series of

    incomprehensible            and perjurious          documents"     that has greatly increased her attorney fees and

resulted in this matter still being active almost 24 months from the filing of the notice of appeal.

Resp' t' s Br. at 3.

          Harris contends that she is entitled to fees on appeal on several grounds, including CR 11

and    RAP 18. 7.'       CR 11 sanctions are awarded by the superior court and not the appellate court.

Bldg Industry Ass 'n            of Wash.      v.   McCarthy,       152 Wn.    App.     720, 750, 218 P. 3d 196 ( 2009). While


CR 11         sanctions     were        formerly        available    on    appeal    under     RAP      18. 7,      a 1994 amendment




4
    This court accepted two supplemental designations of clerk' s papers from Shoemaker.
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eliminated the reference to CR 11 in RAP 18. 7 and provided for sanctions on appeal only under

RAP 18. 9. Bldg Industry Ass 'n, 152 Wn. App. at 750.

          RAP 18. 9 allows an appellate court to impose sanctions against a party who uses the rules

for the purposes of delay, files a frivolous appeal, or fails to comply with the rules. RAP 18. 9( a);

3 K. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE, RAP 18. 9, at 505. (7th                                  ed.   2011).   We


have already denied Harris' s motion for sanctions under RAP 18. 9( a) and RAP 10. 2 based on

Shoemaker' s delay in perfecting this appeal and filing his opening brief, and we decline to award

sanctions on        this   basis   now.    We also decline to award sanctions based on a frivolous appeal,

which is an appeal that presents no debatable issues on which reasonable minds might differ and

which     is   so   totally devoid     of merit   that there    is    no   reasonable   possibility   of reversal.    Reid v.


Dalton, 124 Wn.            App.    113, 128, 100 P. 3d 349 ( 2004). For the same reason, we decline to award


fees under RCW 4. 84. 185, which provides for an award of fees and costs to the prevailing party

when the action            is frivolous.   Protect the Peninsula' s Future v. City of Port Angeles, 175 Wn.

App.     201, 218, 304 P. 3d 914,          review    denied, 178 Wn.2d 1022 ( 2013).              Finally, we decline to

award sanctions under RAP 18. 9 based on Shoemaker' s failure to comply with the appellate

rules.




          We also decline to sanction Shoemaker for contempt under RCW 7. 21. 020, and we deny

Harris' s request for fees based on financial need under RCW 26. 09. 140 because she has not filed

the necessary        affidavit.     See RAP 18. 1(   c) (   fees under RCW 26. 09. 140 are awarded only when the

requesting party files an affidavit of financial need no later than 10 days before a case is
considered).




                                                                 17
43633 -7 -II




         Nonetheless,      we   may         award     Harris    fees    based       on    Shoemaker'     s        intransigence.


Intransigence includes obstruction and foot dragging, filing repeated unnecessary motions, or

making a proceeding unduly difficult and costly. In re Marriage ofBobbitt, 135 Wn. App. 8, 30,

144 P. 3d 306 ( 2006).      If one spouse' s intransigence caused the spouse seeking a fee award to

require additional     legal fees, the financial      resources of     the    spouse     seeking fees   are   irrelevant.     In


re   Marriage of Morrow, 53 Wn.             App.    579, 590, 770 P. 2d 197 ( 1989).            The trial court awarded


Harris fees based on Shoemaker' s intransigence and bad faith and explained its award as follows:

          Shoemaker] filed       against [     Harris] numerous idle claims in state and federal

         courts outside of Kitsap County; these claims all were dismissed as devoid of
         merit, but cost [ Harris] an exorbitant amount of attorney fees far above and
         beyond what otherwise would have been accrued to resolve this dissolution
         action.       Additionally, [       Shoemaker]        filed   manifold        irrelevant,   nonsensical

         documents,      motions,        and discovery requests necessitating attention from and
         responses
                    by [   Harris'  attorney. This court finds that [ Shoemaker' s] behaviors
                                     s]

         reflected in the record doubtlessly constitute intransigence and an award of
         attorney fees to [ Harris] as requested is appropriate.

CP at 709- 10.


         Shoemaker' s intransigent behavior has continued in this court, as his actions in perfecting

this   appeal   have caused Harris to incur            substantial     fees   and   costs.     Before the briefing was

completed,        Shoemaker     filed       several   nonmeritorious          motions,       including        a     motion    for


discretionary     review   in the Supreme Court, that           required attention        from Harris'   s    attorney:      This


behavior is a basis for awarding fees on appeal separate from RAP 18. 9 and RCW 26. 09. 140. In

re   Marriage of Mattson, 95 Wn.            App.   592, 605, 976 P. 2d 157 ( 1999).           We award Harris fees on


appeal   based    on   Shoemaker'    s    intransigence.   Based on this ruling, we need not award statutory

attorney fees under RCW 4. 84. 080.




                                                               18
43633 -7 -II




           Shoemaker requests an award of fees, costs, and sanctions for the first time in his reply

brief. This request comes too late. See Hawkins v. Diel, 166 Wn. App. 1, 13 n.2, 269 P. 3d 1049

 2011) (   fee request must be raised in opening brief under RAP 18. 1).

           Affirmed.


           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.




We concur:




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