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                                                                                                   COUNT OF APPE AI -S
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                                                                                                  2013 OCT 22   AM 8: 54

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                                                                                                  BY




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

In re the Marriage of                                                               No. 42344 -8 -II


LYNN WINGENDER,


                                          Appellant,


          V.



PATRICK WINGENDER.                                                            UNPUBLISHED OPINION




          QUINN- BRINTNALL, P. J. —               Lynn Wingender appeals the trial court' s final order for child


support, final parenting plan, and decree of dissolution. Due to the Lynn Wingender' s failure to

perfect the record, we do not have a sufficient record to review her assigned errors. We affirm.

                                                           FACTS

                                                                                          1
          Lynn       and   Patrick Wingender        were married on   July    23, 1994.       They separated on August

30, 2009. Lynn and Patrick have three children: M.A.W., M.K.W., and M.P. W. After an eight-


day trial, the trial court entered findings of fact and conclusions of law, a decree of dissolution, a

final order on child support, and a final parenting plan.

          The trial court ordered that Patrick sell the family home. Any net proceeds from the sale

of the home were ordered to be split between the parties so if the home was sold at a loss, each

1
    We   use   the   parties'   first   names   for clarity. We intend   no   disrespect.
No. 42344 -8 -II



party was required to pay - alf of the loss. The trial court also awarded " a disproportionate share
                          h

of   property to [ Lynn] in lieu           of   an   award     of maintenance."           Clerk'     s   Papers ( CP) at 668.


Specifically, the trial court awarded Lynn the community property interest in Patrick' s 401( k)

account at    the time    of separation: $      50, 317. 74.        The trial court found that Lynn was voluntarily

underemployed and           imputed her income         at $   1, 920. 00.    Based on the imputed income, the trial


court ordered Lynn to pay a total of $663. 65 a month in child support.

          The final parenting       plan   designated Patrick          as   the primary       residential parent.     The trial


court found the following circumstances justified restricting Lynn' s residential time with the

children: (   1)    a pattern of emotional abuse of a child, ( 2)             neglect or substantial nonperformance


of   parenting functions, ( 3)     long - erm emotional or physical impairment which interferes with the
                                        t

performance of        parenting functions,       and .(4)     the   abusive use of conflict.             Based on its findings,


the trial court granted Lynn a two -
                                   hour supervised visit once a week. The trial court ordered that

Lynn' s    visits    with    the   children     be   supervised "       until supervised visitation is no               longer


recommended         by the reconciliation       counselor or until       further    order of   the   court."   CP at 649.


          Lynn filed a notice      of appeal with      this court on        July   6, 2011.    Lynn designated the clerk' s


papers and the verbatim report of proceedings ( RP) of the trial court' s ruling as the record on

appeal.    Patrick filed a motion to compel Lynn to provide the RPs of the trial ( April 5 - 8, 12 -18,

2011).     Patrick' s motion was referred to the Thurston County Superior Court and the trial court

denied his    motion.       Lynn asserted that she could not afford to have the entire trial transcript




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No. 42344 -8 -II



designated for the         appeal.    Lynn received findings of indigency from Thurston County Superior

Court and filed a motion for expenditure of public funds with the Washington State Supreme

Court.     The Supreme Court denied Lynn' s motion. Accordingly, the transcripts of the trial, and

the corresponding trial exhibits have not been designated as part of the record on appeal.

                                                           ANALYSIS


           Lynn   raises    22 issues in her        appeal.   The issues are primarily related to specific findings

or conclusions in the final parenting plan, final order of child support, or the property distribution

in the decree of dissolution. Lynn also raises some issues regarding the validity of the evidence

presented at      trial.   Because there is no evidence in the record before us on review, the record is

insufficient to allow us to review any of the issues Lynn raises in her appellate brief.

           We review a parenting plan for abuse of discretion. In re Marriage of Caven, 136 Wn.2d

800, 806, 966 P. 2d 1247 ( 1998).              We also review child support orders for an abuse of discretion.

In   re   Marriage of Griffin, 114 Wn.2d 772, 776, 791 P. 2d 519 ( 1990).                       Finally, we review a trial

court' s    property distribution        for   a manifest abuse of       discretion.   In re Marriage of Brewer, 137

Wn. 2d 756, 769, 976 P. 2d 102 ( 1999).                    A trial court abuses its discretion when its decision is


manifestly unreasonable or made on untenable grounds or for untenable reasons. In re Marriage

ofLittlefield, 133 Wn.2d 39, 46 -47, 940 P. 2d 1362 ( 1997).

            We   review     the trial   court' s   findings   of   fact for   substantial evidence.     In re Marriage of

Rockwell, 141 Wn.           App.     235, 242, 170 P. 3d 572 ( 2007), review denied, 163 Wn.2d 1055 ( 2008).


Substantial evidence is evidence of a sufficient quantity of evidence to persuade a fair -
                                                                                         minded,

rational person       that the     finding is      true.   Rockwell, 141 Wn.       App.   at   242.   We defer to the trial




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No. 42344 -8 - II



court on witness credibility and the persuasiveness of the evidence. In re Marriage ofAkon, 160

Wn.    App. 48,      57, 248 P. 3d 94 ( 2011).         We then determine whether the trial court' s findings of


fact support the trial court' s conclusions of law. Rockwell, 141 Wn. App. at 242.

         It is the     appellant' s    burden to     perfect   the   record on appeal. "          If the party seeking review

intends to urge that a verdict or finding of fact is not supported by the evidence, the party should

include in the        record    all   evidence   relevant      to the disputed          verdict   or   finding."   RAP 9. 2( b).


When an appellant has failed to perfect the record on appeal, the court may decline to reach the

merits of an issue because it does not have all the evidence relevant to the issue before it.

Rhinevault      v.   Rhinevault, 91 Wn.          App. 688,       692, 959 P. 2d 687 ( 1998), review denied, 137


Wn.2d 1017 ( 1999).              However, cases should not be decided on the basis of compliance or

noncompliance with the rules of appellate procedure except in compelling circumstances.

Rhinevault, 91          Wn.                  693 (   deciding    the                of   an   issue because " although the
                                App.    at                               merits




designated record and briefing in this case teeter on a tightrope of inadequacy, with some

difficulty we.have gleaned an outline of the facts sufficient to resolve the issues before us ").
          Here,      there is   no evidence contained          in the record before us.            Therefore, it is impossible


to "   glean"   any facts or evidence that may or may not support the trial court' s findings and
exercise of     discretion. See Rhinevault, 91 Wn.                   App.   at   693.    Accordingly, the complete lack of

trial record in this case is a compelling circumstance that requires us to decide the appeal on the

basis of Lynn' s failure to perfect the record as required by RAP 9.2( b).




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No. 42344 -8 -II



        We affirm.


        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.

                                                                         r


                                                                                                 I

                                                QYJINN- BRINTNALL, P. J.




MAXA, J.




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