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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of
                                                        No. 73354-1-1
JENNIFER YONG LUNA,
                                                        DIVISION ONE
                     Respondent,
                                                        UNPUBLISHED OPINION
              and


 NEAL HAROLD LUNA,                                       FILED: March 7, 2016

                     Appellant.
      Appelwick, J. — The trial court on revision determined that a child's

participation in scouting activities was not a major decision and was not subject to

the joint decision making and dispute resolution provisions of the parenting plan.

This was error, but does not warrant reversal. The trial court concluded that

scouting was not an agreed activity for purposes of the child support order. This

was not an abuse of discretion. We affirm.

                                      FACTS


       Jennifer Yong Luna and Neal Luna were married in February 2004. They

had two sons, L.L. and E.L. On September 5, 2013, Jennifer1 filed a petition for

dissolution of marriage, alleging that the marriage was irretrievably broken. Prior


       1 We refer to the parties by their first names for clarity. No disrespect is
intended.
No. 73354-1/2




to the entry of a divorce decree, on June 2, 2014, the parties agreed on a final

parenting plan. At the time the parenting plan was entered, L.L. was five and E.L.

was three.


      Under the parenting plan, the sons reside with each parent equally. Jennifer

has residential time every Tuesday after school until Thursday after school. Neal

has residential time every Monday after school until Tuesday after school and

every Thursday after school until Friday after school. Jennifer and Neal alternate

weekends.    Each parent makes decisions regarding the day-to-day care and

control of each child while the child is residing with that parent. But, decisions

about education, nonemergency health care, religious upbringing, work related

day care, and extracurricular activities are to be made jointly. The parenting plan

also provides that disputes between the parties, other than child support disputes,

must be submitted to mediation. And, the plan notes that if the court finds that a

parent used or frustrated the dispute resolution process without good reason, the

court should award attorney fees and financial sanctions to the other parent.

      After the parenting plan was entered, on June 27, 2014, Jennifer and Neal

participated in a settlement conference with King County Superior Court Judge

Mariane Spearman. At the settlement conference, the parties worked to resolve

financial issues. The parties were successful, and they signed a CR 2A Agreement

(Agreement). The Agreement mandated that Jennifer would pay $1,300.00 in child

support per month.
No. 73354-1/3




      Afterward, counsel for Jennifer and Neal worked on drafting final orders—

including the child support order. The parties resolved all but three issues in the

final drafting of the orders.   One of the drafting issues involved one specific

paragraph of the Agreement, "Proportionate Share of Expenses: Neal's

proportionate share of expenses will be set at 30% and Jennifer's set at 70%. This

shall include uninsured health care expenses, work-related child care expenses,

and agreed activity expenses."

       On August 27, 2014, counsel for both parties wrote to Judge Spearman.

Neat's letter noted that pursuant to the Agreement, Judge Spearman had the

authority to arbitrate the disputed issues. Neal urged Judge Spearman to clarify

what school and activity expenses are shared and to include a dispute resolution

provision to providethe parties an efficient method for resolving any future disputes

over child expense issues. Neal argued that basic child support does not include

specialized equipment for activities, musical instruments, and the like. He argued

that when the parents have agreed that the children will participate in an activity,

the associated expenses should be shared as should mandatory school fees.

       Jennifer's letter asserted that the issues were not subject to arbitration. She

argued that the arbitration clause of the Agreement did not permit Neal to add

provisions which further obligate her to pay a 70 percent contribution toward

expenses never previously discussed. She claimed that each party should pay for

the clothing and equipment necessitated by the activity in which they want the

children to participate. She noted that if both of them wanted the children to
No. 73354-1/4




participate in a particular activity, they presumably can also agree upon what items

the children would need and how the related expenses would be shared.

Specifically, she stated, "[A]n agreed-upon sharing of expenses is implicit in the

words, 'agreed activity expense' because if Jennifer doesn't want to pay 70% of,

for example, a snowboard, helmet, ski jacket etc., she would not agree that the

child take up snowboarding." Finally, she noted that ifJudge Spearman found that

the outstanding issues were subject to arbitration, she should adopt the language

of the Agreement without Neal's proposed modifications.

       On September 3, 2014, Judge Spearman issued a letter ruling. In the ruling,

Judge Spearman stated that in the Agreement, the parties had agreed that activity

expenses would be paid proportionately. But, she noted that the Agreement did

not mention the arbitration of disputes over activity expenses or the cost of

education expenses. She concluded that because the disputes concerning the

payment of required school expenses or the insertion of an arbitration clause are

not drafting issues that were encompassed by the Agreement that she would

decline to address those issues. By contrast, she noted:

       The payment of clothing and equipment for agreed activities is an
       issue that was discussed as part of the CR2A. It is reasonable that
       the expenses for clothing and equipment for agreed upon activities
       should be paid by the parents proportionate to their incomes.
       Children cannot be expected to participate in sports or other activities
       without the appropriate clothing and equipment. If the mother does
       not wish to take on this additional cost, she need not agree to the
       children's participation in the activity.

       Shortly thereafter, on September 17, a divorce decree and a final order of

child support were entered. As was agreed upon in the CR 2A Agreement, the
No. 73354-1/5




child support order required Jennifer to pay $1,300.00 per month in support based

on her monthly net income of $10,050.66 and Neal's monthly income of $4,334.08.

The child support order also included a provision for expenses not included in the

$1,300.00. It stated:

      The petitioner shall pay 70% and the respondent 30% (each parent's
      proportional share of income from the Child Support Schedule
      Worksheet, line 6) of the following expenses incurred on behalf of
      [L.L. and E.L.]:

                 •      Work-related child care expenses
                 •   Agreed activity expenses and expense for related
                     clothing and equipment (e.g., uniforms, specialized
                     sports equipment and clothing, musical instrument)
                 •   School tuition (for preschool and public school
                     kindergarten and for agreed private school after
                        kindergarten)

       On May 16, 2014, before either the parenting plan or the child support order

was entered, Jennifer and Neal began discussing L.L.'s potential participation in

Cub Scouts. Jennifer had taken L.L. to a Cub Scouts event earlier that week.

Jennifer communicated with a leader of a local Cub Scouts "pack" and learned that

Cub Scouts for L.L. would begin in the fall, meetings would take place on the first

Thursday of each month, and that L.L. and his family were invited to a barbecue

on a Monday in June. Jennifer wrote to Neal,

       It seems like [L.L.] would like cub scouts. We can register him for
       the fall and see how he likes it. The meetings are on Thursday
       evenings so you would have to take him. You will need to ask
       someone to look after [E.L.]. I would also like to attend the functions
       as long as you do not mind that I am there as well.
No. 73354-1/6




       Months later, on September 3, 2014, the same day that Judge Spearman

issued her letter ruling, Jennifer e-mailed Neal stating, "Since the meetings for cub

scouts will be on Thursday nights, it is unfortunate that I will not be involved with

this activity with [L.L.]. I will not agree to this extra-curricular activity expense."

The next day, Neal responded and asked Jennifer to clarify whether she was

saying that L.L. could not participate in Cub Scouts or that she would not agree to

pay a proportionate share. He asked if she was willing to pay any part of the

expenses. He also noted that it is possible that the Cub Scouts meetings could

change over time and that there would be activities and other projects which may

fall during Jennifer's residential time. After receiving no response to his e-mail,

Neal again e-mailed Jennifer on September 9 noting that the first Cub Scouts

meeting was coming up that Thursday. That day, Jennifer responded, "[L.L.] can

participate in scouting but I will not pay for this extracurricular activity.      The

meetings will fall on your residential time so this is an activity for you and [L.L.] to

do together. If an event happens to fall on my residential time, I am more than

happy to bring him and participate."

       Notwithstanding Jennifer's refusal to pay a proportionate share of the Cub

Scouts fees, Neal paid L.L.'s Cub Scouts dues on September 25 so that L.L. could

participate.2 On September 30, Neal contacted one of the mediators designated

in the parenting plan and requested mediation on two issues, including whether

Jennifer is required to pay her proportionate share of expenses related to Cub

       2 On October 3, Neal also paid for L.L.'s Cub Scout uniform and necessary
supplies.
No. 73354-1/7




Scouts. That same day, Neal e-mailed Jennifer and asked her to respond with

dates and times that she would be available to participate in mediation.          On

October 6, Jennifer responded and told Neal that her attorney would handle the

issue, but that she was out of the country until late October.

       On October 31, Jennifer's attorney wrote a letter to Neal's attorney

regarding the Cub Scouts expenses. The letter stated that Jennifer would not

contribute to the expenses Neal incurs for L.L.'s Cub Scouts activities, because

Cub Scouts was not an agreed upon activity. It stated that although prior to the

entry of the child support order and before Jennifer was provided with L.L.'s Cub

Scouts schedule (that meetings would take place on Thursdays such that Jennifer

cannot attend), she had agreed that L.L. could attend, she does not agree to pay

for costs associated with the activity. The letter further stated that, because this

was strictly an issue of payment for L.L.'s extracurricular expenses, under the

terms of the child support order and parenting plan, itwas not subject to mediation.

       Neal's attorney responded:

               With regard to the Cub Scout issue, we clearly have a different
       interpretation of the orders.           The parenting plan makes
       extracurricular activities a joint decision and provides for mediation
       for issues subject to joint decision-making that cannot be resolved.
       The order of child support requires the parties to share the cost of
       activities. My understanding [of the] e[-]mail strings between the
       parties that I have reviewed is that Jennifer has agreed that [L.L.] can
       participate in Cub Scouts. She has even stated that she will
       participate with [L.L.] in Cub Scout activities that occur during her
       residential time. Jennifer apparently wants to create a subcategory
       of "conditionally agreed" activities, where she agrees to the activity
       only if Neal pays. But that approach is not consistent with the orders.
       Either she agrees to [L.L.]'s participation in Cub Scouts, in which
       case she is obligated to pay her share; or she does not agree with



                                          7
No. 73354-1/8



       his participation, in which case the issue is subject to dispute
       resolution (mediation and, ifstill not resolution, a motion to the court).

Jennifer's attorney responded and referred to Judge Spearman's letter ruling, and

claimed that because this is not an issue of whether L.L. may participate in the

activity, but a payment issue under the child support order, that it is not subject to

mediation.


       On November 20, Neal paid additional Cub Scouts dues. And, because

L.L. was actively participating in Cub Scouts during this period, on November 23,

Neal e-mailed Jennifer to ask about a Cub Scouts event that would be taking place

on her time. He asked Jennifer whether she would be willing to take L.L. to a winter

camp that most of L.L.'s "pack" was going to attend. Neal e-mailed Jennifer again

on December 15 to follow up, because Jennifer had not responded to the e-mail.

On December 18, Jennifer responded that she could not discuss the Cub Scouts

activity, because Neal was threatening litigation about it.

       On January 12, 2015, Neal filed a motion entitled "Amended3 Motion and

Declaration for Clarification and Enforcement of Parenting Plan and Child Support

Order." The motion: (1) sought clarification of what child activities are subject to

joint decision-making and therefore subject to dispute resolution if the parents

cannot agree; (2) clarification that the parties are required to share the expense of

joint decision-making child activities, pursuant to dispute resolution, including

mediation or motion to the court; (3) orders that L.L. may participate in Cub Scouts,



       3 Neal states that he filed an amended motion after withdrawing his original
motion, because he realized the timing of his original motion would require Jennifer
to respond over the Christmas holiday.


                                           8
No. 73354-1/9




that Jennifer must make her best effort to facilitate L.L.'s participation in Cub

Scouts, and that mediation is waived regarding Cub Scouts in light of Jennifer's

refusal to participate in mediation and the need for timely resolution; (4) orders

requiring Jennifer to pay her proportionate share of Cub Scouts expenses; and (5)

orders requiring Jennifer to pay attorney fees and costs.

      Jennifer submitted a declaration in opposition to Neal's motion. Jennifer

argued that Neal failed to distinguish between a "major decision" regarding

"extracurricular activities" under the parenting plan and "agreed activity expenses"

under the order of child support. She noted that the issue raised by Neal is a child

support dispute, not a parenting plan dispute requiring dispute resolution. And,

she claimed that she did not agree to pay for L.L.'s participation in Cub Scouts so

itwas not an agreed activity for purposes of the child support order. She asserted

that under the parenting plan, Cub Scouts is neither a major decision nor an

extracurricular activity. Finally, she argued that she should be awarded all of her

attorney fees and costs pursuant to RCW 26.18.160 as the prevailing party.

       On January 28, 2015, Neal's attorney filed a declaration supporting a

request for attorney fees in favor of Neal in the amount of $4,657.98. Similarly,

Jennifer's attorney filed a declaration seeking attorney fees on January 29, 2015

in the approximate amount of $6,536.48.

       On January 30, 2015, the parties appeared before King County Superior

Court Commissioner Bonnie Canada-Thurston on Neal's motion to enforce and
No. 73354-1/10




clarify the parenting plan and the child support order. Commissioner Canada-

Thurston ruled as follows:


       (1) Joint decision-making is required for extracurricular activities
           including Cub Scouts; joint decision-making regarding] activities
           is not limited by the words "Major Decisions."

       (2) Whether a child will participate in an extracurricular activity,
           including Cub Scouts, is subject to dispute resolution.

       (3) The mother's failure to participate in dispute resolution is excused
          in this instance because of the confusion related to the last
          sentence of Judge Spearman's 9/3/14 letter ruling so fees are not
          awarded on that basis.

       (4) The mother did agree to the child's participation in scouting for
           the 2014-2015 [school year]. She did not recant her agreement.
           The statement that she is not willing to pay the expense is not
           permitted by the intent of Judge Spearman's letter, the Order of
           Child Support, or the parenting plan.

       (5) [L.L.] shall participate in Cub Scouting for the 2014-2015 school
           year. Both parents shall facilitate his participation. [There is]
          evidence mother agreed.

       (6) The parents shall pay their proportionate shares of Cub Scout
           expenses. The mother shall reimburse the father what is
          currently owing within 10 days.

       (7) Jennifer Yong Luna shall pay the father or [the father's attorney]
           $1,000 (one thousand dollars) in reasonable attorneys' fees
          within 10 days of this order.

       On February 6, 2015, Jennifer filed a motion for revision of Commissioner

Canada-Thurston's order. She argued that Cub Scouts is neither a "major" activity

nor an "extracurricular" activity rendering it subject to the dispute resolution

provisions. As a result, she argued that the commissioner erred in finding that

Jennifer's failure to participate in mediation was a violation of the parenting plan.




                                          10
No. 73354-1/11




She also asserted that the commissioner erred in finding that she entered into a

binding agreement that required her to pay 70 percent of Cub Scouts related

expenses and that she did not recant on the "agreement" in her later e-mails and

in the correspondence from her attorney to Neal's attorney. She further claimed

that the commissioner erred in ruling that an activity can be an "agreed activity"

under the order of child support even when there is no agreement as to the

payment for the expenses associated with the activity. She maintained that the

commissioner erred when ordering that she pay 70 percent of the Cub Scouts

expenses and that she pay $1,000 in attorney fees.

      The parties then went before Judge Richard Eadie on Jennifer's motion for

revision. Judge Eadie granted Jennifer's motion for revision and vacated the

commissioner's ruling. The order was simple and contained no explanation for his

decision, but Judge Eadie's reasoning was clear from his oral ruling. Judge Eadie

was unpersuaded by Jennifer's argument that Cub Scouts is not considered an

extracurricular activity. But, he adopted Jennifer's proposed definition of "major"

and reasoned that the word "major" means an activitythat affects the child's health,

safety or welfare, or significantly affects the other parent's residential time.

Following this definition, Judge Eadie reasoned that, unlike an activity such as ski

lessons, Cub Scouts does not affect a child's health, safety, or welfare. He stated

that, significantly and critically, Cub Scouts did not significantly affect Jennifer's

residential time and it was strictly on Neal's time. He reasoned, "I don't think that

this is the kind of activity that can be subjected to that formal process because it's




                                          11
No. 73354-1/12




too much confined to one party or the other without putting the child at risk." And,

Judge Eadie noted that there was never an agreement between Jennifer and Neal

regarding Cub Scouts, because payment was an undetermined material term. He

declined to award fees to either party.

       Neal appeals, requesting that this court reverse and reinstate the

commissioner's order.

                                   DISCUSSION


       Neal argues that the trial court erred in revising the commissioner's correct

rulings. He argues that under the terms of the parenting plan, child support order,

and Judge Spearman's ruling, no option exists for Jennifer to agree to an activity,

but refuse to pay for it. He notes that otherwise Jennifer could pay only for her

chosen activities and evade the parties' proportionality agreement in the child

support order.

       When the trial court reviews a commissioner's ruling, it reviews both the

commissioner's findings of fact and conclusions of law de novo based upon the

evidence and issues presented to the commissioner.           RCW 2.24.050; In re

Marriage of Fairchild, 148 Wn. App. 828, 831, 207 P.3d 449 (2009). Once the trial

court makes a decision on review, the appeal is from the trial court's decision, not

the commissioner's. ]d. Here, the trial court granted Jennifer's motion for revision

and vacated the commissioner's order. In doing so, the trial court interpreted the

parenting plan, determinedthat Jenniferdid not agree to all the material terms Neal




                                          12
No. 73354-1/13




proposed regarding Cub Scouts, and concluded that no additional child support

was triggered.

       Interpreting a parenting plan or a child support order is a question of law

that we review de novo. In re Marriage of Cota, 177 Wn. App. 527, 534, 312 P.3d

695 (2013); In re Marriage of Kirshenbaum, 84 Wn. App. 798, 803, 929 P.2d 1204

(1997) (applying the rules for interpreting a divorce decree to interpreting a

parenting plan). Where a decree is ambiguous, a reviewing court must ascertain

the intention of the court that entered the original decree, using general rules of

construction.    In re Marriage of Gimlett. 95 Wn.2d 699, 704-05, 629 P.2d 450

(1981). Normally, the court is limited to examining the provisions of the decree to

resolve issues concerning its intended effect. Jd. By contrast, this court reviews a

trial court's decision regarding child support for manifest abuse of discretion. In re

Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). This court will

uphold findings of fact supported by substantial evidence. Id.

       Superior courts, in reviewing decisions of court commissioners pursuant to

RCW 2.24.0504 should enter their own findings of fact and conclusions of law into

the record if they reach a different conclusion than that of the commissioner. In re

Estate of Larson, 103 Wn.2d 517, 520 n.1, 694 P.2d 1051 (1985); See In re

Dependency of B.S.S., 56 Wn. App. 169, 170-71, 782 P.2d 1100 (1989). A trial

court must make findings of fact and conclusions of law sufficient to suggest the

factual basis for its ultimate conclusions. In re Marriage of Lawrence, 105 Wn.



       4 RCW 2.24.050 is a statute governing revision by the superior court.


                                          13
No. 73354-1/14




App. 683, 686, 20 P.3d 972 (2001). A trial court's failure to enter findings of fact

and conclusions of law requires remand to the trial court for formal entry of written

findings and conclusions unless the record is adequate for review. Just Dirt, Inc.,

v. Knight Excavating. Inc., 138 Wn. App. 409, 416, 157 P.3d 431 (2007). Here,

the trial court's oral ruling contains findings of fact and conclusions of law sufficient

for our review. And, neither party claims that the trial court's failure to enter written

findings of fact and conclusions of law was error.

   I.   Agreed Activity Expenses

        We first consider the meaning of "agreed activity expenses" in the child

support order. The relevant provision of the child support order states that Jennifer

shall pay 70 percent of the expenses for "[a]greed activity expenses and expenses

for related clothing and equipment (e.g., uniforms, specialized sports equipment

and clothing, musical instrument)" and Neal shall pay 30 percent.

        Neal argues that because Jennifer agreed to L.L.'s participation in Cub

Scouts that Cub Scouts expenses are necessarily "agreed activity expenses"

which she needs to pay.5 Neal argues that no option exists for Jennifer to agree

to the activity, but refuse to pay for it.        By contrast, Jennifer argues that

interpretation of this phrase is unnecessary, because factually, the parties either

agreed or did not agree to pay the activity expenses. But, in so arguing, Jennifer

implicitly advances her own interpretation of this phrase. She essentially argues



       5 Neal argues that the evidence does not support the trial court's finding that
Jennifer never agreed to allow L.L. to participate in Cub Scouts. But, the trial court
never found that Jennifer did not agree to allow L.L. to participate in Cub Scouts.


                                           14
No. 73354-1/15




that the word "agreed" modifies the phrase "activity expense" such that each party

must agree to the specific activity expense before he or she is bound to

proportionate payment under the child support order.

       "Agreed activity expenses" was included in the parties' CR 2A Agreement.

The parties then had the benefit of Judge Spearman's interpretation of "agreed

activity expenses" in her letter ruling before they agreed on the final child support

order. And, that phrase was later incorporated, unchanged into the child support

order. In her letter ruling, it is clear that Judge Spearman interpreted the phrase

to mean that the parties were to share payment of expenses for "agreed

activities"—not only agreed expenses. There is nothing in the record suggesting

that the parties intended to adopt a different meaning of the phrase in their child

support order than the meaning Judge Spearman attributed to the phrase in her

letter ruling. We adopt that meaning. Under the child support order, if the activity

is an "agreed activity," the expenses are automatically shared proportionately. If it

is not an "agreed activity," the expenses are not apportioned.6

   II. Extracurricular Activities and Agreed Activity

       Neal also argues that the trial court erred when it reasoned that only "major

decisions" regarding extracurricular activities are governed by the parenting plan

and are subject to joint decision making.7

       6 Any dispute about the amount to be apportioned is resolved by the court
under RCW 26.19.080(4), not the dispute resolution provisions of the parenting
plan. The court reviews the necessity for or reasonableness of the expense. ]d_,
       7 Jennifer argues that whether participation in Cub Scouts is a "major
decision" requiring joint decision making is a moot issue, because L.L. has been
allowed to participate in Cub Scouts and, therefore, this court is unable to provide


                                         15
No. 73354-1/16




       Below, the trial court concluded that Cub Scouts is not considered an

extracurricular activity subject to joint decision making or dispute resolution under

this provision of the parenting plan, because it is not a "major activity" or a "major

decision." The trial court reasoned that because most parties cannot afford to

mediate every issue, only "major activities" are subject to the provision. The trial

court then adopted Jennifer's proposed definition of the word "major" and reasoned

that the word "major" is an activity that affects the child's health, safety, welfare, or

significantly affects the other parent's residential time. The trial court concluded

that because Cub Scouts does not affect L.L.'s health, safety, or welfare, or

significantly affect Jennifer's residential time, it did not constitute a major activity

or a major decision.

       Neal argues that by virtue of the parties including "extracurricular activities"

in the "major decisions" section of the parenting plan, they have identified all

extracurricular activity decisions as major decisions requiring joint decision

making. We agree.

       The relevant provision of the parenting plan states:

       4.2     Major Decisions

               Major decisions regarding each child shall be made as
               follows:




Neal any relief. Although L.L. has been participating in Cub Scouts, whether Cub
Scouts is considered an extracurricular activity subject to joint decision making is
still relevant to determine whether Jennifer should have agreed to mediate the
issue under the parenting plan. Under the parenting plan, an attorney fee award
is proper if a party frustrates the dispute resolution process. Therefore, this issue
is still relevant to determine whether an attorney fee award is proper.


                                           16
No. 73354-1/17



              Education decisions                joint
              Non-emergency health care          joint
              Religious upbringing               joint
              Work related day care              joint
              Extracurricular Activities         joint

(Boldface omitted.)    Allocation of decision making under parenting plans is

governed by RCW 26.09.184(5):

               (a) The plan shall allocate decision-making authority to one or
       both parties regarding the children's education, health care, and
       religious upbringing. The parties may incorporate an agreement
       related to the care and growth of the child in these specified areas,
       or in other areas, into their plan consistent with the criteria in RCW
       26.09.187 and 26.09.191. Regardless of the allocation of decision
       making in the parenting plan, either parent may make emergency
       decisions affecting the health or safety of the child.

             (b) Each parent may make decisions regarding the day-to-day
       care and control of the child while the child is residing with that
       parent.

             (c) When mutual decision making is designated but cannot be
       achieved, the parties shall make a good-faith effort to resolve the
       issue through the dispute resolution process.

Therefore, RCW 26.09.184(5) recognizes three types of decisions: emergency,

day to day, and allocated decisions. Allocation of decision making is done by

agreement and may be an allocation to one parent exclusively or to the parents

jointly, jd. Allocated decision making controls over day-to-day decision making.

Id.   Emergency decision making controls over both day-to-day and allocated

decision making, jd.

       The statute mandates that decision making must be allocated with respect

to education, health care, and religious upbringing.         RCW 26.09.184(5)(a).

Decision making may be allocated in other areas as long as the agreement of the




                                         17
No. 73354-1/18




parties is consistent with the criteria in RCW 26.09.1878 and RCW 26.09.191.9

Nothing in RCW 26.09.184 limits the allocation of decision making to only "major"

activities or decisions. Nothing restricts the parties' right to allocation to specific

items rather than broader categories.

       Although, the parenting plan forms used in family law cases have adopted

a heading entitled "Major Decisions," the heading should not be read as limiting

Jennifer and Neal's authority under the statute to allocating decision making to only

"major" decisions. Jennifer and Neal were (and remain) free to allocate decision

making to an extremely finite issue or to a broad category, subject only to the

emergency exception and to the limitations outlined in RCW 26.09.187 and RCW

26.09.191. The decision here about extracurricular activities does not implicate

the criteria in those statutes nor does it involve an emergency situation.

       Jennifer and Neal opted, by agreement, to allocate the broad category of

"extracurricular activities" for joint decision making, and they did so without

limitation.10 They could have limited the allocation of decision making about

extracurricular activities to only those activities that would affect the residential time



       8 RCW 26.09.187 outlines the criteria for establishing a permanent
parenting plan.
       9 RCW 26.09.191 establishes restrictions in temporary and permanent
parenting plans.
       10 The trial court expressed concern about all extracurricular activities being
subject to formal joint decision making and the dispute resolution process,
because, generally, parties do not have the financial means to fight over "these
kinds of issues" in mediation. Cost is a practical limitation for the parties. However,
the allocation of decision making to "other areas" is left to the discretion of the
parties, not to the discretion of the trial court. The allocation is subject only to the
limitations in RCW 26.09.187 and RCW 26.09.191.



                                           18
No. 73354-1/19




of both parents, but they did not make this limitation. Here, either parent is entitled

to object to an extracurricular activity even if it is to occur solely during the

residential time of the other parent.11

       Under the plain      language of the parenting plan, decisions about

extracurricular activities are to be made jointly. Given its ordinary meaning, Cub

Scouts clearly fits the definition of "extracurricular activity." Neither parent argues

otherwise on appeal. As such, decision making about Cub Scouts is subject to

joint decision making. And, a dispute about participation in an extracurricular

activity is subject to good faith participation in the designated dispute resolution

process.12 RCW 26.09.184(4),(5).

       To the extent the trial court determined that L.L.'s participation in Cub

Scouts was not a "major decision," was not subject to joint decision making, and

was not subject to dispute resolution under the parenting plan, it committed legal

error. However, this does not resolve whether the trial court correctly concluded

that Cub Scouts was not an "agreed activity" under the child support order.



       11 That an activity poses a danger is an obvious reason one parent might
object to an activity occurring on the other parent's residential time. The variety of
potential extracurricular activities is vast and so may be the reasonable bases for
objection. Of course, the parties are free to modify their allocation of decision
making in the parenting plan subject to the statutory limitations if they find the
current scheme unworkable.
       12 Jennifer asserts she was not obligated to go to dispute resolution,
because the only issue was a monetary child support dispute. If, in fact, she
stipulated that Cub Scouts is an "agreed activity" and that the only issue was
monetary, she would be correct that dispute resolution was not appropriate.
However, it would also be clear that she owed additional child support. This would
have resulted in reversal of the trial court order and an imposition of attorney fees.
The real question was whether Cub Scouts was an "agreed activity."


                                          19
No. 73354-1/20




       Jennifer initially proposed Cub Scouts to Neal. But, her view evolved when

she realized that Cub Scouts would take place on Neal's residential time, that she

would not be involved with the activity, and yet the cost would still be apportioned.13

The trial court concluded that Jennifer's e-mail was informing Neal that there was

no agreement, because all material terms were not agreed upon, because of the

activity's schedule and the activity's cost. In this light, we cannot say that the trial

court abused its discretion in concluding that the parties had not reached an

agreement.14 Therefore, Cub Scouts was not an "agreed activity" for purposes of

the child support order.

       This result may on its face seem irreconcilable with the fact that L.L. is in

Cub Scouts and that Jennifer "agrees" that he can be in Cub Scouts on Neal's

residential time. However, what Jennifer agreed to is different from an "agreed

activity" in which both parents have a voice, participation rights, and financial

obligations. As to this activity, Jennifer has waived any objection that she was

entitled to raise under the decision making portion of the parenting plan. And, each

parent may make decisions regarding the day-to-day care and control of the child



       13 The trial court noted that Cub Scouts was to occur strictly on Neal's
residential time. Neal argues that there is not substantial evidence in the record
supporting this finding. We need not determine whether there was substantial
evidence to support the trial court's finding that Cub Scouts took place strictly on
Neal's residential time. It is irrelevant to whether joint decision making and dispute
resolution were triggered. And, whether Jennifer correctly believed that the activity
was all on Neal's time is not relevant to whether or not she agreed with Neal's
proposal.
       14 Whether an agreement was reached is a close call. Were we instead
reviewing the opposite conclusion, like that reached by the commissioner, we
might well under our abuse of discretion standard affirm the opposite result.


                                           20
No. 73354-1/21




when the child is residing with that parent. RCW 26.09.184(5)(b). As a result,

Jennifer has also waived any right to participate in the activity, but has no obligation

under the child support order for the related expenses.15

   III. Attorney Fees

       The trial court vacated the commissioner's award of attorney fees to Neal.

And, it declined to award either party attorney fees on revision. Neal argues that

he is entitled to fees below and on appeal pursuant to RCW 26.18.160, the

parenting plan, and RAP 18.1. We review the trial court's denial of attorney fees

for abuse of discretion.   In re Marriage of Moody, 137 Wn.2d 979, 993-94, 976

P.2d 1240 (1999).

       RCW 26.18.160 states that in an action to enforce a support order, the

prevailing party is entitled to a recovery of costs, including an award for reasonable

attorney fees. Jennifer is the prevailing party on this issue. Therefore, Neal is not

entitled to attorney fees as the prevailing party below or on appeal.

       But, Neal also argues that he is entitled to attorney fees under the parenting

plan. Under the parenting plan, if the court finds that a parent has used or

frustrated the dispute resolution process without good reason, the court shall

award attorney fees and financial sanctions to the other parent. But, the parties

had two different, reasonable understandings about how the parenting plan and

the child support order were to be interpreted. The court commissioner and the

superior court judge also interpreted the parenting plan and child support order

       15 Of course, should Jennifer want to participate, the parties could revisit the
decision making process.


                                           21
No. 73354-1/22




differently.   We conclude that Jennifer did not frustrate the dispute resolution

process without good reason. We, therefore, decline to award Neal fees on this

basis.


         Jennifer argues that she is entitled to fees on appeal under RAP 18.9(a),

because Neal pursued a meritless appeal and sought to mediate a child support

dispute even though the parenting plan strictly exempts child support disputes.

RAP 18.9(a) authorizes the appellate court, on its own initiative or on motion of a

party, to order a party or counsel who files a frivolous appeal to pay terms or

compensatory damages. Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1

(2009). Appropriate sanctions may include an award of attorney fees and costs to

the opposing party. Jd.

         Neal's appeal was not meritless or frivolous. In fact, Neal prevailed on his

argument that Jennifer should have engaged in dispute resolution. Therefore, we

decline to award fees on this basis.

         We affirm.




                                               'rf*^-
WE CONCUR:




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