                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                            January 13, 2020




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    In the Matter of the Marriage of,                                   No. 52554-2-II

    ASHLIE RENEE RITTSCHER,

                                   Respondent,
                                                                 UNPUBLISHED OPINION
    And

    DANIEL GILBERT RITTSCHER,

                                   Appellant.



          MAXA, C.J. – Daniel Rittscher appeals the trial court’s denial of his petition to obtain

reimbursement of day care expenses from his former wife, Ashlie Rittscher (now Anderson),

under RCW 26.19.080(3). Daniel1 argues that the trial court erred in (1) denying his petition

because Ashlie did not actually incur day care expenses after 2013, and (2) imposing sanctions

against his attorney under CR 11.

          We (1) affirm the trial court’s denial of Daniel’s petition for reimbursement of day care

expenses, and (2) dismiss Daniel’s appeal of the imposition of CR 11 sanctions against his

attorney because Daniel is not an aggrieved party under RAP 3.1.




1
    For clarity, we refer to the parties by their first names. No disrespect is intended.
No. 52554-2-II


                                               FACTS

         This appeal arises from dissolution proceedings between Daniel and Ashlie. The trial

court ordered dissolution on September 25, 2013. The trial court apparently issued a child

support order as part of the dissolution, in which Daniel was ordered to pay day care expenses

for the parties’ minor child, TR.

         In October 2017, Daniel filed a petition for reimbursement of day care expenses. He

argued that Ashlie had not incurred day care expenses and sought reimbursement under RCW

26.19.080(3) in the form of a credit against his future child support payments. Daniel’s

supporting declaration stated that TR had been attending full time kindergarten since 2013 and

that to his knowledge, she had not been attending any day care since about 2013. However, he

stated that he had been paying $583 per month for day care under the original child support

order.

         In her responsive declaration, Ashlie acknowledged that Daniel had paid day care costs

for four years, but stated that he knowingly and willingly continued to pay day care costs even

though he knew that TR was not attending day care. According to Ashlie, in November 2013

Daniel, Ashlie, and Ashlie’s wife Cassi Anderson met to discuss Ashlie and Cassi’s impending

move. Ashlie stated:

         During this conversation, we all decided that it would be best for [TR] if Cassi
         could quit her job as a daycare teacher, and stay at home to care for [TR] fulltime.
         This would be a large monetary reduction for Cassi and me, and the only way we
         could make it work is if DANIEL continued making his portion of child care
         expenses. DANIEL agreed to do so because it was best for [TR].

Clerk’s Papers at 68.

         Cassi submitted a declaration in which she confirmed Daniel’s agreement that she would

quit her job as a day care teacher to care for TR full time at home. She stated that the family’s




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No. 52554-2-II


income was reduced by $2,000 per month because she was providing care to TR. And she stated

that once Daniel decided he did not want to adhere to the agreement, she returned to work and

TR was placed in before and after school day care.

       In December, Ashlie apparently filed a motion for a temporary family law order,

requesting that a more restrictive parenting plan be entered. She requested that the parenting

plan prohibit Daniel from visiting the child, based on a protection order issued in another case.

In February 2018, the trial court entered an order appointing a guardian ad litem (GAL) on

behalf of the minor child to address all parenting plan issues and other specific issues.

       On June 26, Daniel filed a motion to remove the GAL for cause. He claimed that the

GAL should be disqualified because one of the issues she was investigating was domestic

violence between Daniel and Ashlie, and he alleged that the GAL had been involved in her own

domestic violence incidents. Daniel also stated a number of complaints about the GAL’s

investigation, her objectivity, and her billing practices.

       On July 10, the trial court heard argument on Ashlie’s motion for a more restrictive

parenting plan and on Daniel’s petition for reimbursement of day care expenses and motion to

remove the GAL. Ashlie argued that Daniel’s motions were frivolous and that there was ample

basis for CR 11 sanctions.

       The trial court denied Daniel’s petition for reimbursement, stating that “it sounds like

[Daniel] hasn’t paid anything.” Report of Proceedings (RP) at 15. Daniel’s attorney stated that

she thought the petition for reimbursement had been stricken, but the court noted that the motion

was on the docket and stated again that the motion was denied.

       The trial court also denied Daniel’s motion to remove the GAL. The court stated that the

motion was “absolutely frivolous” and had “no factual basis whatsoever.” RP at 14-15.




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No. 52554-2-II


The court on its own motion imposed CR 11 sanctions against Daniel’s attorney in the amount of

$350. On July 24, the trial court entered an order that denied Daniel’s motions and ordered

Daniel’s attorney to pay $350 to Ashlie.

       Daniel filed a motion for reconsideration on the same date the order was filed. He

submitted a declaration attaching documentation regarding Ashlie’s payment of day care

expenses. The record does not reflect whether the trial court considered the additional

documentation on reconsideration or how the court ruled on the motion.

       Daniel appeals the trial court’s denial of his motion for reimbursement of day care

expenses and the imposition of CR 11 sanctions against his attorney. Daniel’s attorney did not

file a notice of appeal regarding the sanctions.

                                            ANALYSIS

A.     PETITION FOR REIMBURSEMENT OF DAY CARE EXPENSES

       Daniel argues that the trial court erred in denying his motion for reimbursement of day

care expenses under RCW 26.19.080(3). We disagree.2

       Under RCW 26.19.080(3), “‘[i]f an obligor pays court . . . ordered day care . . . expenses

that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the

overpayment amounts to at least twenty percent of the obligor’s annual day care . . . expenses.”

When ordered day care expenses are not incurred, reimbursement is mandatory. In re Marriage

of Barber, 106 Wn. App. 390, 394-95, 398, 23 P.3d 1106 (2001).




2
  Initially, Ashlie argues that Daniel’s appeal is moot because Daniel’s motion for
reconsideration was untimely. But Daniel’s motion clearly was filed within 10 days after the
court’s written order, as required under CR 59 (b). In any event, Daniel’s notice of appeal was
timely filed within the 30-day time limit under RAP 5.2. When Daniel filed a motion for
reconsideration is immaterial.


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No. 52554-2-II


       Where the trial court has weighed the evidence, our review is limited to ascertaining

whether the findings of fact are supported by substantial evidence and, if so, whether the findings

support the conclusions of law and the judgment. In re Wash. Builders Benefit Trust, 173 Wn.

App. 34, 65, 293 P.3d 1206 (2013). Substantial evidence is evidence that is sufficient to

persuade a fair-minded person of the truth of the premise stated. Id.

       Here, the trial court’s explanation for denying Daniel’s motion for reimbursement of day

care expenses was the somewhat cryptic statement that “it sounds like [Daniel] hasn’t paid

anything.” RP at 15. It is possible that the court concluded that Daniel had not submitted

sufficient documentation that he actually had paid day care expenses. But in light of Ashlie’s

agreement that Daniel had paid day care expenses for four years, such a conclusion would not be

supported by substantial evidence.

       However, we can affirm the trial court on any basis supported by the record. Larson v.

State, 9 Wn. App. 2d 730, 744, 447 P.3d 168 (2019). Here, the record supported a finding that

Ashlie was incurring day care expenses. Ashlie’s wife Cassi quit her job – as a day care teacher

– in order to provide in-home care for TR. This means that Cassi was providing day care to TR

before and after school. And Ashlie essentially was incurring day care expenses because her

wife’s care of TR resulted in a $2,000 per month reduction in Ashlie and Cassi’s joint income.

This loss in family income was far greater than the day care expense that Daniel was paying.

       In addition, the evidence supports a finding that Daniel agreed to this arrangement. He

agreed that he would continue to pay day care expenses to offset Cassi’s loss of income as a

result of her care of TR.

       The question is whether the reduction of income to allow Cassi to provide care to TR

constitutes “day care” expenses that Ashlie incurred under RCW 26.19.080(3). Because the




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statute does not define “day care,” we interpret the term “in a manner that serves the best

interests of children.” In re Marriage of Mattson, 95 Wn. App. 592, 600, 976 P.2d 157 (1999).

We conclude that under the specific facts of this case, Ashlie’s reduction in community income

constituted day care expenses because as Daniel himself recognized, having Cassi care for TR

was in TR’s best interests. Therefore, Ashlie did incur the day care expenses that Daniel paid

and Daniel was not entitled to reimbursement under RCW 26.19.080(3).

       We hold that the trial court did not err in denying Daniel’s petition for reimbursement of

day care expenses.

B.    CR 11 SANCTIONS AGAINST ATTORNEY

       Daniel argues that the trial court abused its authority when it imposed CR 11 sanctions on

his attorney. We dismiss the appeal of the CR 11 order because Daniel is not an aggrieved party

under RAP 3.1 regarding this order.

       RAP 3.1 states, “Only an aggrieved party may seek review by the appellate court.” An

aggrieved party is one whose own rights are substantially affected. Breda v. B.P.O. Elks Lake

City, 120 Wn. App. 351, 353, 90 P.3d 1079 (2004). “Clients are not ‘aggrieved parties’ to

sanctions against their attorneys at trial and may not appeal the sanctions on behalf of their

attorneys.” Id. at 352. Because the CR 11 sanctions were imposed only against Daniel’s

attorney, Daniel is not an aggrieved party under RAP 3.1.

       Accordingly, we dismiss Daniel’s appeal of the trial court’s imposition of sanctions

against his attorney.

C.     ATTORNEY FEES ON APPEAL

       Ashlie requests an award of reasonable attorney fees against Daniel in the amount based

on RAP 18.9 because his appeal is frivolous. We decline to award attorney fees.




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        Under RAP 18.9(a), an appellate court may impose sanctions for a frivolous appeal. An

appeal is frivolous if it presents “no debatable issues upon which reasonable minds might differ”

and is “so totally without merit that there is no reasonable possibility of a reversal.” Advocates

for Responsible Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764

(2010). Here, Daniel’s appeal of the order denying his petition for reimbursement of day care

expenses was not completely frivolous. Therefore, we decline to award Ashlie her attorney fees

on appeal.

                                          CONCLUSION

        We affirm the trial court’s denial of Daniel’s petition for reimbursement of day care

expenses and dismiss Daniel’s appeal of the order imposing CR 11 sanctions on Daniel’s

attorney.

        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.



                                                      MAXA, C.J.



 We concur:



 MELNICK, J.




 GLASGOW, J.




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