                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           October 1, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 CAMERON CORNELL,                                                     No. 51305-6-II

                                Respondent,

         v.

 MICHAEL C. CODEKAS,                                           UNPUBLISHED OPINION

                                Appellant.

       CRUSER, J. — Michael Codekas appeals the trial court’s final order and findings on

Cameron Cornell’s petition to modify a parenting plan and order of child support. He argues that

the trial court violated his due process rights, the appearance of fairness doctrine, and the CJC

Canon 2.9(C) by improperly considering a deposition transcript that was not admitted into

evidence. Codekas argues that without the trial court’s reliance on the deposition transcript, its

findings of fact, specifically the trial court’s domestic violence finding, are not supported by

substantial evidence.

       Codekas also challenges the trial court’s order of child support, arguing that the trial court

abused its discretion by imputing his income without finding that he was voluntarily

underemployed and by deducting retirement contributions from Cornell’s income. Codekas also

argues that the trial court improperly awarded fees to Cornell under RCW 26.09.260(13). He asks

us to vacate the trial court’s final orders and remand for a new trial in front of a different judge.

We affirm the trial court’s orders, but remand to the trial court to strike three findings of fact and
No. 51305-6-II


limited portions of other findings of fact that are not supported by substantial evidence on the

record, but have no prejudicial effect on the outcome of the proceedings. We also remand to the

trial court to strike Cornell’s retirement contribution deduction from her income calculation and

recalculate Cornell’s income and Codekas’s child support obligation. We remand to the same

judge, as Codekas has not shown that the trial court violated the appearance of fairness doctrine or

CJC Canon 2.9(C).

                                                 FACTS

                                            I. BACKGROUND

          Codekas and Cornell began a relationship in 2006 and had one child together, C.C., 1 born

in 2009. Codekas and Cornell separated when C.C. was two years old. In March 2014, the trial

court entered a parenting plan, residential schedule, and child support order. The parenting plan

gave each parent 50/50 residential time and provided for joint decision making. At that time,

Codekas lived with his mother, Shirley Low. Cornell agreed to the parenting plan because she

was confident Low’s household had the support to ensure Codekas would be “a good dad.” Ex.

19 at 84-85.

          In August 2015, Codekas and Cornell disagreed on whether C.C. should attend

kindergarten at a public or private school. Both parents unilaterally enrolled C.C. in their preferred

schools. In November 2015, Codekas accused Cornell’s significant other, S.C.,2 of molesting C.C.




1
    We use the minor’s initials to protect their privacy.
2
 We use initials to refer to Cornell’s significant other because there is no evidence in the record
of a criminal charge or conviction flowing from this accusation.

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No. 51305-6-II


Codekas alleged that C.C. had disclosed the abuse to Low. At Codekas’s direction, Low called

the police to report the alleged abuse.

       Codekas refused to return C.C. to Cornell. The next day, Cornell filed a petition to modify

their parenting plan and child support order. Cornell’s petition cites to Codekas’s unilateral

enrollment of C.C. in his preferred kindergarten and his refusal to return C.C. to Cornell during

her agreed time with C.C. as the substantial change in circumstances to justify a modification of

their parenting plan.

       Child Protective Services (CPS) and the Tacoma Police Department investigated the

allegation. C.C. did not disclose the abuse to either agency. Child Protective Services (CPS)

determined the molestation allegation was unfounded on December 7, 2015. Codekas filed a

complaint against the CPS investigator who interviewed C.C. alleging that the investigator was

biased. On December 14, 2015, the Tacoma Police Department determined the molestation

allegation was unfounded. The Tacoma Police Department also determined that Codekas’s

allegation against the CPS investigator was also unfounded.

       Codekas hired his own forensic psychologist to interview C.C. During the interview, C.C.

purportedly disclosed the abuse that he had described to Low. Following the interview, Codekas

filed a petition for a sexual assault protection order against S.C.

       On December 18, 2015, Codekas asked Low to help him serve S.C. with the petition and

order for protection. Codekas and Low, in separate vehicles, began following S.C.’s vehicle. S.C.

was driving his vehicle and Cornell was a passenger. A car chase ensued. Codekas made multiple

attempts to drive S.C.’s vehicle over a curb and off the road. Eventually, Low maneuvered her

vehicle in front of S.C.’s vehicle and stopped abruptly, causing a collision. Low exited her vehicle


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No. 51305-6-II


and served S.C. with the petition and order for protection. Codekas and Low were arrested at the

scene of the collision. Codekas was charged with one count of harassment – threaten malicious

acts, one count of reckless endangerment/DV, and one count of reckless endangerment. Low was

charged with four counts of reckless endangerment/DV.

       After the car altercation, Cornell filed a restraining order and domestic violence protection

order against Codekas. In February 2016, Codekas proposed to drop his sexual assault protection

order against S.C. if Cornell agreed to drop her domestic violence protection order against him.

Cornell agreed, and both petitions were dismissed.

       In July 2016, Codekas filed a cross petition for modification of the parenting plan,

requesting full custody of C.C. In his declaration in support of his cross petition, Codekas referred

to the sexual assault allegation against S.C. He claimed Cornell “vehemently stated [C.C.]’s

disclosure was untrue,” yet she admitted that C.C. does not lie. Clerk’s Papers (CP) at 570.

Codekas also accused Cornell of not investigating C.C.’s allegations of abuse, but instead Cornell

sought only to gain full custody of C.C.

       The trial court appointed a guardian ad litem (GAL) on behalf of C.C. The GAL issued a

report that discussed Codekas’s allegations of sexual abuse against S.C. The GAL reported that

she had “serious concerns” about how Codekas and Low handled the sexual assault allegation.

The GAL found that S.C. “has nothing in his background that is concerning” and that “[C.C.]

appears to have a very warm nurturing relationship with [S.C.].” CP at 33. The GAL testified at

trial, and her report was admitted into evidence.




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No. 51305-6-II


                              II. INCIDENTS OF DOMESTIC VIOLENCE

       Cornell disclosed that Codekas committed several acts of domestic violence against

Cornell throughout their relationship. In 2009, when Cornell was eight months pregnant with C.C.,

Codekas locked Cornell out of their shared apartment. Cornell contacted their landlord to open

the apartment. Codekas contacted the police to report the landlord when he attempted to let her

back into their apartment. Codekas denied any recollection of this event at trial.

       In 2010, Codekas was arrested for simple assault (DV) after a confrontation with Cornell.

Codekas took Cornell’s belongings and pushed Cornell to the ground multiple times. Cornell

sustained injuries to her wrist and hand. Although the charges were dropped, the incident report

was admitted into evidence without objection.

       Cornell testified to the 2010 incident at her discovery deposition. At her deposition,

Cornell stated,

               [Cornell]: He was trying to slam the door, and he slammed the door on my
       fingers, and pushed me back on the ground. There was [sic] multiple pushes. He
       was swearing at me, and calling me a psycho bitch, and expletives, and telling me
       that, you know, he was going to take [C.C.] away from me.

Ex. 19 at 83. Codekas requested the publication of Cornell’s deposition transcript, but the

deposition was not admitted into evidence.

       Cornell also testified to a 2012 incident at her deposition. She stated that she was aware

of Codekas’s sister calling the police in 2012 because his sister “was concerned about how

[Codekas] was disciplining [C.C.].” Ex 19 at 119.        At trial, Codekas stated that he did not

remember this incident.

       In November 2015, following Codekas’s accusation that S.C. had sexually abused C.C., a

Tacoma Police detective interviewed Cornell. During the interview, Cornell disclosed past

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No. 51305-6-II


domestic violence incidences between herself and Codekas, including when Codekas locked

Cornell out of their shared apartment, when Cornell was arrested for pushing Cornell, and when

Codekas “‘cracked [Cornell’s] head’ against the glass door in her apartment.” CP at 359-60; Ex.

3 at 10. The police report was admitted into evidence without objection.

       The trial court ordered the court-appointed GAL to investigate and address any domestic

violence by Cornell and Codekas. Her report discusses incidents of Codekas’s domestic violence

against Cornell, including Codekas’s 2010 arrest for simple assault (DV). The GAL report was

admitted into evidence without objection.

       Additionally, Wendy Hutchins-Cook, a court-appointed psychologist, performed a

parenting evaluation. Her report documents interviews with Codekas and Cornell. Hutchins-Cook

includes multiple different allegations of Codekas’s past abuse against Cornell, including Cornell’s

statements that Codekas sexually, physically, and emotionally abused Cornell during their

relationship.    Hutchins-Cook’s report quotes Cornell as stating, “‘[Codekas] would get

emotionally abusive. . . . He was physically abusive, pushing me down once. He forced sex on me

when I didn’t want it.’” Ex. 3 at 9. Hutchins-Cook’s report quotes Codekas as stating, “‘This was

shortly after I supposedly raped [Cornell], beat [Cornell], and smashed [Cornell’s] head.’” Ex. 2

at 3. Hutchins-Cook’s report was admitted into evidence without objection.

                                     III. TRIAL PROCEEDINGS

       The case proceeded to trial in October 2017. The day of trial, Codekas dropped his

modification petition. Codekas testified that he “changed [his] request” and no longer sought full

custody. 2 Verbatim Report of Proceedings (VRP) at 394-95. He asked the trial court to maintain

the parties’ 50/50 plan. Codekas testified that he had actually changed his position and wanted to


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No. 51305-6-II


maintain the parties’ 50/50 plan in as early as April 2017, however he waited until the day of trial

to drop his petition that sought full custody of C.C.

       Codekas presented a psychologist, Landon Poppleton, as an expert witness to critique

Hutchins-Cook’s evaluation. Poppleton testified that he did not have any concerns with the

methods or conclusions of Hutchins-Cook’s evaluation.           Later, when asked if he believed

Hutchins-Cook’s ultimate recommendations were correct, he testified that he could not say

whether “she was right or wrong.” 2 VRP at 244.

       Cornell and S.C. testified about Codekas’s history of emotional abuse against Cornell.

Both Cornell and S.C. testified that Codekas would “bully” Cornell and called Cornell a “bitch.”

1 VRP at 18-19, 73, 105, 106. Cornell also testified about her income. Cornell testified that she

contributed to her 401K in the amount of $272 a month. Cornell’s proposed child support order

and financial declaration were admitted into evidence.

       Following closing arguments, the trial judge invited the parties to note a hearing and make

objections after reviewing her letter ruling.

                                        IV. LETTER RULING

       The trial court entered a letter ruling on November 6, 2017, followed by written findings

of fact and conclusions of law, granting Cornell’s petition for modification.

       The trial court made detailed findings of Codekas’s history of domestic violence:

               2. There is a history of domestic violence between the parties. Mother
       alleged that Father raped, beat, and emotionally abused her while they were
       together. It was “usual” for Father to tell her that she was crazy and threaten to take
       [C.C.] away from her. In 2009, police were called because Father locked Mother
       out of the apartment. In March 2010, Mother called the police because Father had
       taken away her car keys, driver’s license, and cell phone; pushed her to the ground,
       causing a sprained wrist and injured hand; and shoved her in the stomach with his
       feet. In 2011, Father “bashed” Mother’s head into a door and called her a “psycho

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No. 51305-6-II


       bitch.” The 2011 incident is what prompted Mother to end the relationship with
       Father. Although Father denied that he assaulted Mother in 2010, the Court
       observed his demeanor during testimony and did not find him credible.
               3. In 2012, at a time when Father was living with [Low] and sister, Father’s
       sister called the police because she was concerned about the way Father was
       disciplining [C.C.]. During trial, Father claimed he did not remember this incident.
       The Court had the opportunity to observe Father’s demeanor and did not find him
       credible.

CP at 720.

       The trial court concluded that Codekas has a history of domestic violence against Cornell,

as defined by former RCW 26.50.010(1) (2008), that has continued in this case with Codekas

“engaging in a low-speed chase” of Cornell. CP at 725. The trial court found that Cornell did not

ask for restrictions of Codekas’s residential time based on alleged domestic abuse in 2014 because

“she felt that there would be enough rules and family support in place to make sure that he would

be a good dad.” CP at 720.

       The trial court also made findings regarding C.C.’s alleged molestation disclosure. The

trial court found that following the disclosure, “Father immediately called the police to report the

allegations” and “[a]s a result of Father’s call to law enforcement,” a CPS investigation was

launched, and S.C. became a criminal suspect. CP at 721. The trial court further found that “[i]n

spite of the fact that the molestation allegations were deemed unfounded . . ., Father continued to

maintain that [S.C.] was a danger to [C.C.].” CP at 722. Codekas “cited the allegations as one of

the bases for his petition for modification” and “did not concede that the allegations against [S.C.]

were unfounded until trial.” CP at 722.

       The trial court also found that Codekas engaged in an abusive use of conflict and moved

to modify the parenting plan in bad faith under RCW 26.09.260(13) and CR 11. The trial court

found that Codekas’s cross petition for a modification and defense to Cornell’s petition were made

                                                 8
No. 51305-6-II


in bad faith, not well grounded in fact, and interposed for improper purposes, such as to harass

Cornell and to improperly leverage her into dismissing her modification petition. The trial court

supported its finding by referencing Codekas dropping his demand for a modification on the day

of trial, his lack of credibility, and the testimony of Hutchins-Cook and the GAL, whose

investigations contradicted allegations made by Codekas in support of his petition for

modification.

       The trial court modified the parenting plan to conform to Hutchins-Cook’s

recommendations, noting that “[b]oth parties have testified that they believe that the current

parenting plan is unworkable due to conflict between them.” CP at 724. The trial court also found

that Codekas’s expert witness, Poppleton, “conceded he did not have any problems with Dr.

Hutchins-Cook’s findings and conclusions.” CP at 724. The trial court’s letter ruling opened by

directing the parties to raise any objections to the content of the ruling at the presentment hearing

and concluded by stating, “Again, any objections or changes to these findings and conclusions, as

well as arguments relating to fees and costs, can be addressed at a presentment hearing.” CP at

706.

                                   V. PRESENTATION HEARING

       The presentation hearing on all final orders was held on November 22, 2017. At the

hearing, the trial court again requested the parties raise their “proposed changes” to the court’s

orders. 4 VRP at 610.

       First, the court addressed Codekas’s objection to the trial court’s “bad faith” finding against

Codekas. 4 VRP at 610. The trial court stated that Codekas’s cross petition to modify the parenting

plan was an abusive use of conflict and that Codekas held the opinion that C.C. was sexually


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No. 51305-6-II


abused up until the day of trial, which “complicated the litigation.” 4 VRP at 614. The trial court

found that Codekas’s actions “intended to influence the outcome” of the litigation and “considering

that all of the investigating agencies had already concluded their work and essentially found the

allegations to be without merit,” the trial court ordered sanctions pursuant to RCW 26.09.260(13)

and CR 11 for bad faith litigation on behalf of Codekas. 4 VRP at 614. The trial court ordered

sanctions against Codekas for $5,000.

       The trial court also addressed the parties’ income calculations for child support purposes.

The parties agreed that Codekas’s pay stubs indicated his monthly income was $1,600. Codekas’s

hourly wage as a construction foreman was $25, he attended school part time, and worked “as

much as he possibly” could. 4 VRP at 624. From this information, the trial court found that

Codekas was voluntarily underemployed and imputed his monthly income to $2,850.

       Cornell requested a deduction to her income calculation based on her retirement

contributions. Codekas raised an objection to the deduction because Cornell did not provide

documentation that she had been making retirement contributions for the year preceding trial, as

required by RCW 26.19.071(5)(g). The trial court granted Cornell’s request, stating that the court

was relying on testimony presented at trial and “there was at least circumstantial evidence

presented that it was paid during the last twelve months.” 4 VRP at 6227.

       The trial court entered all final orders and incorporated its memorandum decision by

reference into the final orders. The trial court reduced Codekas’s residential time from 50 percent

to 35 percent. Based on the trial court’s domestic violence findings, the trial court granted Cornell

sole decision making. The trial court also found Codekas to be the obligor parent and ordered a

transfer payment of $450 a month.


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No. 51305-6-II


       Codekas appeals the parenting plan, order of child support with worksheets, and order on

modification.

                                            ANALYSIS

       Codekas challenges a number of the trial court’s findings of fact. Codekas argues that the

trial court’s domestic violence finding and other findings of fact are supported only by Cornell’s

deposition transcript, which neither party moved to admit into evidence. Codekas argues that the

trial court’s reliance on the deposition transcript violates his due process right to a fair trial, the

appearance of fairness doctrine, and CJC Canon 2.9(C). Codekas also challenges the trial court’s

imputation of his income based on a finding that his income was “unknown.” Codekas also argues

that the trial court abused its discretion when deducting Cornell’s retirement contributions from

her income calculation under RCW 26.19.071(5)(g) and when awarding attorney fees to Cornell

under RCW 26.09.260(13).

       We hold that to the extent the trial court relied on Cornell’s deposition transcript, its

reliance was improper. However, the trial court’s reliance on the deposition transcript does not

demonstrate a violation of Codekas’s due process right to a fair trial, the appearance of fairness

doctrine, or the CJC Canon 2.9(C). Instead, the challenged findings of fact are either supported

by other substantial evidence in the record or have no prejudicial effect on the outcome of the

proceedings. As to the child support order, we hold that the trial court did not abuse its discretion

when finding Codekas’s income was “unknown” and imputing his income. We hold that the trial

court abused its discretion when deducting Cornell’s retirement contributions from her income

calculation. Consequently, we affirm the trial court’s conclusions of law but remand to the trial

court to strike limited portions of certain challenged findings of fact, and we remand the support


                                                  11
No. 51305-6-II


order to strike only Cornell’s retirement contribution deduction and recalculate Cornell’s income.

We also affirm the trial court’s attorney fees and costs award to Cornell, but decline to award

Cornell fees and costs on appeal.

                                        Ⅰ. LEGAL PRINCIPLES

       We review a trial court’s decision to modify a parenting plan for abuse of discretion. In re

Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202 (2010). A court abuses its discretion if

its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Chua,

149 Wn. App. 147, 153-54, 202 P.3d 367 (2009). “A court’s decision is manifestly unreasonable

if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it

is based on untenable grounds if the factual findings are unsupported by the record; it is based on

untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements

of the correct standard.” In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 136 (1997).

Parenting plan modifications are rarely reversed on appeal because “‘[t]he emotional and financial

interests affected by such decisions are best served by finality.’” In re Parentage of Jannot, 149

Wn.2d 123, 127, 65 P.3d 664 (2003) (quoting In re Parentage of Jannot, 110 Wn. App. 16, 21, 37

P.3d 1265 (2002)).

       We review a trial court’s findings of fact regarding modification for substantial evidence.

In re Marriage of Wilson, 165 Wn. App. 333, 340, 267 P.3d 485 (2011). Substantial evidence

exists when there is sufficient evidence to persuade a rational fair-minded person that the premise

is true. In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011). The trial court’s

findings of fact are verities on appeal as long as they are supported by substantial evidence. In re

Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). Unchallenged conclusions of law


                                                  12
No. 51305-6-II


become the law of the case. In re Marriage of Laidlaw, 2 Wn. App. 2d 381, 386, 409 P.3d 1184,

review denied, 190 Wn.2d 1022 (2018).

       We do not substitute our judgment for the superior court’s judgment, weigh the evidence,

or evaluate witness credibility. Wilson, 165 Wn. App. at 340. When the superior court has

weighed the evidence, we determine only whether substantial evidence supports the findings of

fact and if so, whether the findings support the superior court’s conclusions of law. Id. We review

the superior court’s conclusions of law de novo. In re Marriage of Wehr, 165 Wn. App. 610, 613,

267 P.3d 1045 (2011).

       Pursuant to RCW 26.09.260(4), “[t]he court may reduce or restrict contact between the

child and the parent with whom the child does not reside a majority of the time if it finds that the

reduction or restriction would serve and protect the best interests of the child using the criteria in

RCW 26.09.191.” Under former RCW 26.09.191 (2011), a trial court must limit a parent’s

residential time and may limit a parent’s decision making if that parent has a history of acts of

domestic violence. Domestic violence includes any “[p]hysical harm, bodily injury, assault, or the

infliction of fear of imminent physical harm, bodily injury or assault” between household

members. Former RCW 26.050.010(1)(a).

                     Ⅱ. TRIAL COURT’S USE OF THE DEPOSITION TRANSCRIPT

       Codekas challenges a number of the trial court’s findings of fact, contending that the trial

court improperly relied on Cornell’s deposition transcript, which neither party moved to admit into




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No. 51305-6-II


evidence.3 Codekas argues that the trial court’s use of the deposition transcript as substantive

evidence violates his due process right to a fair trial, the appearance of fairness doctrine, and the

CJC Cannon 2.9(C).

A. DUE PROCESS AND JUDICIAL BIAS

       Codekas argues that his constitutional right to a fair trial was infringed by the trial court’s

reliance on Cornell’s deposition transcript in her findings of fact, which was information outside

of the trial court record. As a result of the trial court’s error, Codekas argues that the judge’s

“‘impartiality may be reasonably questioned.’” Opening Br. of Appellant at 24 (quoting State v.

Ra, 144 Wn. App. 688, 704-05, 175 P.3d 609 (2008)). Codekas also claims that the trial judge

violated the CJC by performing her own investigation, considering evidence not presented at trial,

and advocating for Cornell. We disagree.

       At trial, Codekas requested the publication of Cornell’s deposition transcript for the

purpose of impeaching Cornell’s credibility. CR 32(a)(1). Codekas did not seek to admit the

deposition transcript into evidence. Impeachment evidence may be considered to determine

witness credibility and may not be used as substantive evidence. State v. Garland, 169 Wn. App.

869, 885, 282 P.3d 1137 (2012); ER 613(b).




3
  Codekas also argues that the trial court erred when it made the domestic violence finding against
him because Cornell did not allege domestic violence in her modification petition and she did not
argue for a domestic violence finding at trial. However, Codekas does not provide us with any
argument or citations to legal authority to support his assertion that the trial court cannot make a
domestic violence finding sua sponte. RAP 10.3(a)(6). “Such ‘[p]assing treatment of an issue or
lack of reasoned argument is insufficient to merit judicial consideration.’” West v. Thurston
County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012) (alteration in original) (quoting Holland v.
City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)); see RAP 10.3(a)(6). Accordingly,
we do not address his argument.

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No. 51305-6-II


       However, Codekas raises this error for the first time on appeal. Under RAP 2.5(a), we

generally do not entertain issues not raised in the trial court. The purpose of this rule is to

“‘encourage the efficient use of judicial resources . . . by ensuring that the trial court has an

opportunity to correct any errors, thereby avoiding unnecessary appeals.’” State v. Fenwick, 164

Wn. App. 392, 398, 264 P.3d 284 (2011) (alteration in original) (internal quotation marks omitted)

(quoting State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011)). An exception to this general

rule is a “‘manifest error affecting a constitutional right.’” State v. O’Hara, 167 Wn.2d 91, 98,

217 P.3d 756 (2009) (quoting RAP 2.5(a)).

       Following closing arguments, the trial judge invited the parties to note a hearing and make

objections after reviewing her letter ruling. The trial judge opened her letter ruling by directing

the parties to make objections to the content of her letter at a presentment hearing and concluded

her letter by stating, “Again, any objections or changes to these findings and conclusions, as well

as arguments relating to fees and costs, can be addressed at a presentment hearing.” CP at 706.

At the presentment hearing, Codekas did not raise any objection to the trial court’s “history of

domestic violence” findings or any other findings of fact. CP at 701.

       Codekas had ample opportunity to raise his objections to the trial court’s findings below

and failed to do so. Further, Codekas does not demonstrate how the trial court’s reliance on the

deposition transcript that Codekas himself offered to publish at trial impacts the judge’s neutrality

against Codekas. Moreover, Codekas does not demonstrate that the error was “manifest” or that

the error resulted in “‘practical or identifiable consequence[s].’” O’Hara, 167 Wn.2d at 99

(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). Codekas claims that the

trial court’s findings and ultimate decision rely only on the deposition transcript. However, as we


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No. 51305-6-II


discuss below, the findings of fact that Codekas challenges are either supported by other substantial

evidence in the record or have no prejudicial effect on the outcome of the proceedings.

B. CHALLENGED FINDINGS OF FACT

            In determining whether substantial evidence exists to support the trial court’s finding of

fact, we review the record in the light most favorable to the party in whose favor the findings were

entered, here Cornell. Zigler, 154 Wn. App. at 812.

            1.     Finding of Fact 2

            Codekas challenges finding of fact 2, which supports the trial court’s conclusion that

Codekas has a history of domestic violence as defined by former RCW 26.050.010(1). Finding of

fact 2 relays Codekas’s history of domestic violence against Cornell, including Codekas’s alleged

physical, sexual, and emotional abuse against Cornell.

            Codekas argues that the findings were not supported by substantial evidence because the

findings rely on Cornell’s deposition, which was not admitted into evidence at trial. To the extent

that the trial court relied on Cornell’s deposition testimony, its reliance was improper but does not

invalidate finding of fact 2. However, substantial evidence in the record supports the trial court’s

history of domestic violence finding.

            First, the trial court’s finding that Cornell alleged that Codekas “raped, beat, and

emotionally abused her” was supported in both Hutchins-Cook’s report and the GAL report. CP

at 720. Hutchins-Cook’s report quotes Cornell as stating, “‘[Codekas] would get emotionally

abusive. . . . He was physically abusive, pushing me down once. He forced sex on me when I

didn’t want it.’” Ex. 3 at 9. Hutchins-Cook’s report and the GAL report were admitted as evidence

at trial.


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       The 2009 incident where “police were called because Father locked Mother out of the

apartment” is supported by substantial evidence. CP at 701. The incident report following the

molestation allegation against S.C. states that Cornell “explained one time [Codekas] locked her

out of the apartment while she was pregnant and the apartment manager had to let her back in and

the police were called.” CP at 359. The incident report was admitted into evidence.

       Codekas’s 2010 arrest for simple assault (DV), when he reportedly took Cornell’s “car

keys, driver’s license, and cell phone; pushed her to the ground, causing a sprained wrist and

injured hand; and shoved her in the stomach with his feet” is supported by ample evidence. CP at

720. The full incident report of the assault was admitted into evidence. The GAL report references

Codekas’s 2010 arrest for simple assault (DV) as an incident of Codekas’s domestic violence

against Cornell. Additionally, the incident report following the molestation allegation against S.C.

cites to Codekas’s arrest for pushing Cornell. All reports were admitted into evidence.

       The 2011 incident where Codekas reportedly “bashed” Cornell’s head into a door is

similarly supported by substantial evidence. CP at 720. The incident report following the

molestation allegation references the 2009 abuse incident where Codekas “‘cracked [Cornell’s]

head against the glass door in her apartment.” CP at 359-60; Ex. 3 at 10. Similarly, Hutchins-

Cook’s report quotes Codekas as stating, “‘This was shortly after I supposedly raped [Cornell],

beat [Cornell], and smashed [Cornell’s] head.’” Ex. 2 at 3. Again, the incident report and

Hutchins-Cook’s report were admitted into evidence at trial.

       Last, Codekas argues that the trial court’s finding that he called Cornell a “‘psycho bitch’”

is supported by only Cornell’s deposition transcript, which was not admitted into evidence. CP at

720. Although ample evidence in the record supports a finding that Codekas engaged in name


                                                17
No. 51305-6-II


calling, including calling Cornell a “bitch,” the record does not support a finding that Codekas

called Cornell a “‘psycho bitch.’” CP at 720. Therefore, we remand to excise the word “psycho”

from finding of fact 2, but hold that substantial evidence supports what remains of the finding as

well as the trial court’s conclusion that Codekas has a history of domestic violence, as defined by

former RCW 26.050.010(1).

          2.     Finding of Fact 3

          Codekas challenges the trial court’s finding of fact 3 that states Codekas’s sister called the

police in 2012 “because she was concerned about the way [Codekas] was disciplining [C.C.].” CP

at 720. The trial court noted that during trial, Codekas “claimed he did not remember this incident.

The Court had the opportunity to observe Father’s demeanor and did not find him credible.” CP

at 720.

          Cornell questioned Codekas about the 2012 police report, but Codekas stated that he did

not remember the incident. The only other statements regarding this incident were contained in

Cornell’s deposition transcript. Therefore, we remand to the trial court to strike finding of fact 3

because it is not supported by substantial evidence. We note that striking finding of fact 3 has no

prejudicial effect on the outcome of the proceedings, as other substantial evidence in the record

forms the strong basis for the trial court’s domestic violence finding against Codekas.

          3.     Finding of Fact 4

          Codekas challenges the trial court’s finding that in 2014, Cornell “did not ask for any

restrictions on [Codekas’s] residential time based on alleged domestic violence because she felt

that there would be enough rules and family support in place to make sure that he would be a good

dad.” CP at 701.


                                                   18
No. 51305-6-II


       At trial, Cornell did not testify about her reasoning for not seeking restrictions on

Codekas’s residential time when the parties entered the first parenting plan and child support order

in 2014. The only statements Cornell made regarding her reasoning for not seeking restrictions

were at her deposition. Therefore, the trial testimony does not support finding of fact 4.

       4.      Findings of Fact 11 and 13

       Codekas challenges the trial court’s statement that Codekas called the police following

C.C.’s alleged molestation disclosure. (“Father immediately called the police. . . . As a result of

Father’s call to law enforcement, a CPS investigation was launched.”). CP at 702. Codekas’s

sexual assault protection order states that Codekas “told [Low] to call the police.” Ex. 25 at 4.

The trial testimony supports the fact that Codekas himself did not call the police. Rather, Codekas

instructed Low to call the police following C.C.’s alleged disclosure. We affirm the findings but

on remand instruct the trial court to strike the statement that “Father” called law enforcement and

revise findings of fact 11 and 13 to reflect that Low called law enforcement.

       5.      Finding of Fact 18

       Codekas challenges the trial court’s finding that “[i]n spite of the fact that the molestation

allegations were deemed unfounded in February 2016, [Codekas] continued to maintain that [S.C.]

was a danger to [C.C.].” CP at 703. “[Codekas] cited the allegations as one of the bases for his

petition for modification, filed in July 2016.” CP at 703.

       Codekas’s declaration in support of his cross petition included the following in support of

adequate cause:

       When [C.C.] made a disclosure of sexual abuse by [S.C] to my mom, [Cornell’s]
       first move was to file a petition to modify the parenting plan, seeking to drastically
       reduce my time . . . without ever hearing what [C.C.] disclosed or seeing the results
       of a forensic interview. [Cornell] has vehemently stated [C.C.]’s disclosure was

                                                19
No. 51305-6-II


       and is untrue, yet, she admitted . . . that [C.C.] “doesn’t normally just say things
       that aren’t true.” . . . It is extremely concerning that she did not even investigate the
       allegations, but chose to attempt to gain full custody, thus ensuring that [C.C.]
       would be living full time in the same household as his potential abuser.

CP at 569-70.

       We do not substitute our judgment for that of the trial court and defer to the trial court’s

determinations on the persuasiveness of the evidence. Snyder v. Haynes, 152 Wn. App. 774, 779,

217 P.3d 787 (2009). We defer to the trial court’s interpretation of Codekas’s declaration. The

declaration supports the trial court’s finding.

       6.       Finding of Fact 19

       Codekas also challenges the trial court’s finding that Codekas “did not concede that the

allegations against [S.C.] were unfounded until trial.” CP at 703. Codekas argues that “the record

is undisputed that he accepted the CPS report that the allegations were unfounded and thereafter

dismissed the sexual assault petition against [S.C.].” Opening Br. of Appellant at 26.

       The record does not support Codekas’s contention. On December 7, 2015, the CPS report

came back unfounded. After the report came back unfounded, Codekas filed a complaint against

the CPS investigator, alleging that the investigator was biased against him. On December 14,

2015, the Tacoma Police Department also determined that the molestation allegation was

unfounded.

       However, Codekas and Low served S.C. with the sexual assault protection order on

December 17, 2015, after CPS and the Tacoma Police Department had determined that the

allegations were unfounded. Furthermore, the court heard testimony on multiple occasions that

Codekas dismissed his sexual assault petition against S.C. only after Cornell agreed to dismiss her



                                                  20
No. 51305-6-II


domestic violence protection order against Codekas, not because Codekas believed that the

allegations were unfounded.

       We hold that substantial evidence supports this finding.

       7.      Finding of Fact 31

       Codekas challenges the trial court’s finding that Dr. Poppleton “conceded that he did not

have any problems with Hutchins-Cook’s findings and conclusions.” CP at 705. Codekas argues

that this finding is not supported by substantial evidence because Dr. Poppleton was critical of

Hutchins-Cook’s analysis. We disagree. Although the record supports a finding that Poppleton

was critical of Hutchins-Cook’s analysis, Poppleton did not testify that he had any issues in regards

to Hutchins-Cook’s findings and conclusion.

       8.      Finding of Fact 32

       Codekas challenges the trial court’s finding that “[b]oth parties have testified that they

believe that the current parenting plan is unworkable due to conflict between them” because

Codekas testified at trial that he sought to maintain the current 50/50 plan. CP at 705. Codekas is

correct that the trial testimony does not support finding of fact 32. Although Codekas previously

argued for a modification because “the conflict has grown between us to the point that the existing

50/50 plan is no longer in [C.C.]’s best interest,” Codekas changed his position the day of trial by

dropping his modification petition. CP at 569. At trial, Codekas “changed [his] request” and asked

the trial court to maintain the parties’ 50/50 plan. RP at 395.

       Challenged findings are verities on appeal if supported by substantial evidence. Robel v.

Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We affirm the trial court’s finding of fact

2 due to extensive evidence in the record that supports the trial court’s conclusion that Codekas


                                                 21
No. 51305-6-II


has a history of domestic violence as defined by former RCW 26.050.010(1). However, we

remand to strike the word “psycho” from finding of fact 2. We affirm the trial court’s findings of

fact 11 and 13, which state that the police were called following C.C.’s alleged molestation

disclosure, but remand to strike the phrase “Father called,” as substantial evidence supports a

finding that Low, not Codekas, called the police. We affirm the trial court’s interpretation of

Codekas’s petition for modification in finding of fact 18, as well as the trial court’s finding that

Codekas did not concede that the allegations were unfounded until trial in finding of fact 19. Last,

we affirm the trial court’s finding of fact 31, which states that Dr. Poppleton did not have any

problems with Hutchins-Cook’s findings and conclusions.

        We remand to strike finding of fact 3, which relays an incident in 2012 where Codekas’s

sister allegedly called the police due to concerns regarding Codekas’s discipline of C.C., and

finding of fact 4, which explains Cornell’s reasoning for not seeking restrictions on Codekas when

entering the first parenting plan and child support order. We also remand to strike the finding that

both parties testified as to their belief that the parenting plan was unworkable, supporting finding

of fact 32. Although not supported by substantial evidence on the record, we hold that findings of

fact 3, 4, and 32, and the limited portions of findings of fact 2, 11, 13, 18, and 31 that we remand

to strike do not have a prejudicial effect on the outcome of the proceedings. Therefore, we affirm

the trial court’s final orders.

                                       Ⅳ. CHILD SUPPORT

        Codekas argues that the trial court abused its discretion by improperly finding his income

was unknown and imputing his income. He also argues that the trial court abused its discretion

when deducting Cornell’s retirement contributions. Cornell argues that the trial court properly


                                                22
No. 51305-6-II


imputed Codekas’s income when it found that his income was unknown because Codekas failed

to provide the trial court with any testimony, financial declaration, or tax returns for the trial court

to determine Codekas’s actual income. Cornell further contends that the trial court properly

deducted her retirement contributions from her income calculation. We hold that the trial court

did not abuse its discretion when imputing Codekas’s income, but abused its discretion when

deducting Cornell’s retirement contributions from her income calculations. We remand to strike

Cornell’s retirement contributions and recalculate Cornell’s income calculation and the transfer

payment amount accordingly.

A.      INCOME IMPUTATION

        Codekas argues that the trial court abused its discretion by improperly imputing his income

to $2,850 because “his income was established by nearly ten months of paystubs” and the court

did not make a finding that Codekas is voluntarily underemployed as required by RCW

26.19.071(6). Opening Br. of Appellant at 27.

        RCW 26.19.071(6) discusses when and how income should be imputed to a parent, in part,

as follows:

        The court shall impute income to a parent when the parent is voluntarily
        unemployed or voluntarily underemployed. The court shall determine whether the
        parent is voluntarily underemployed or voluntarily unemployed based upon that
        parent’s work history, education, health, and age, or any other relevant factors. A
        court shall not impute income to a parent who is gainfully employed on a full-time
        basis, unless the court finds that the parent is voluntarily underemployed and finds
        that the parent is purposely underemployed to reduce the parent’s child support
        obligation. . . . In the absence of records of a parent’s actual earnings, the court
        shall impute a parent’s income in the following order of priority:
                (a) Full-time earnings at the current rate of pay.

(Emphasis added.)



                                                  23
No. 51305-6-II


       Where income is unknown because of voluntary underemployment or voluntary

unemployment, a parent’s income shall be based on the parent’s full-time earnings at the current

rate of pay. RCW 26.19.071(6)(a).

       Turning to the present case, Codekas argues that the trial court abused its discretion when

imputing his income because his pay stubs show he is “‘gainfully employed on a full-time basis’”

and the trial court did not make a finding that he is underemployed for the purpose of reducing

child support as required by RCW 26.19.071(6). Opening Br. of Appellant at 28 (quoting In re

Marriage of Peterson, 80 Wn. App. 148, 153, 906 P.2d 1009 (1995)). Codekas provided the trial

court with 10 pay stubs, which indicated that his hourly wage as a construction foreman was $25

and he averaged a monthly income of about $1,600. Simple division shows that Codekas averaged

about 16 hours of work per week.

       The trial court did not abuse its discretion by finding that an average of 16 hours of

employment per week is not full-time employment. Because Codekas’s pay stubs proved that he

is not “‘gainfully employed on a full time basis,’” the trial court was not required under RCW

26.19.071(6) to make a finding of whether Codekas was underemployed for the purpose of

reducing child support. Opening Br. of Appellant at 28 (quoting Peterson, 80 Wn. App. at 153).

       The trial court also did not abuse its discretion when finding that Codekas’s income was

unknown. Codekas did not provide the trial court with a complete understanding of his gross or

net income, personal expenses, assets, and debts, or his tax returns as require by RCW




                                               24
No. 51305-6-II


26.19.071(2).4 “In the absence of records of a parent’s actual earnings, the court shall impute a

parent’s income.” RCW 26.19.071(6). The order of child support reveals this lack of information,

therefore the trial court correctly concluded that Codekas’s income was “unknown.” RCW

26.19.071(6).

       We hold that the trial court did not abuse its discretion when it found that Codekas’s income

was “unknown” and when it imputed his income based on his full-time earnings at his current rate

of pay, as required by RCW 26.19.071(6).

B.     RETIREMENT CONTRIBUTIONS

       Codekas also argues that the trial court abused its discretion by improperly deducting

Cornell’s retirement contributions from her income calculation under RCW 26.19.071(5)(g)

because Cornell did not produce evidence that she had been contributing to her retirement fund

during the one-year period preceding trial. Codekas requests us to vacate the child support order

and remand.

       At trial, Cornell testified that she contributes to her 401K in the amount of $272.5 Codekas

did not question Cornell about her financial declaration or proposed child support order. The trial




4
 “Tax returns for the preceding two years and current paystubs shall be provided to verify income
and deductions. Other sufficient verification shall be required for income and deductions which
do not appear on tax returns or paystubs.” RCW 26.19.071(2)
5
  Contrary to Cornell’s argument at the hearing for the presentation of final orders, Cornell did not
testify at trial and her financial declaration does not state that she “routinely” contributes to her
401K or “historically” has contributed to her 401K.

                                                 25
No. 51305-6-II


court granted Cornell’s request for a deduction at a posttrial hearing. 6 The trial court found that

Cornell’s income calculation, including a reduction for her retirement contributions, was by the

evidence presented at trial and “there was at least circumstantial evidence presented that it was

paid during the last twelve months.” 4 VRP at 626-27.

        RCW 26.19.071 provides the standards for determining income for purposes of calculating

child support obligations. RCW 26.19.071(5)(g) specifically deals with deductions and provides

in relevant part,

        The following expenses shall be disclosed and deducted from gross monthly
        income to calculate net monthly income:
               (g) Up to five thousand dollars per year in voluntary retirement
        contributions actually made if the contributions show a pattern of contributions
        during the one-year period preceding the action establishing the child support
        order.

(Emphasis added.)

        As the moving party, Cornell bears the burden of showing that she had been contributing

to her retirement fund during the one-year period preceding the action. RCW 26.19.071(5)(g); In

re Marriage of McCausland, 159 Wn.2d 607, 615, 152 P.3d 1031 (2007). Cornell’s financial

declaration provided only the monthly amount that Cornell contributes to her 401K, and she did

not provide any documentation or testimony at trial that she contributed to her 401K during the

one-year period preceding trial. RCW 26.19.071(5)(g).




6
 Cornell argues that Codekas waived his opportunity to examine Cornell’s financial information
when he failed to engage in discovery on the child support issue or cross-examine Cornell at trial.
However, the trial court did not address the child support issue until the hearing for the presentation
of final orders.

                                                  26
No. 51305-6-II


       The trial court abused its discretion by deducting Cornell’s retirement contributions

because Cornell failed to meet her burden under RCW 26.19.071(5)(g). We remand the support

order to strike only Cornell’s retirement contribution deduction and recalculate Cornell’s income

as well as the transfer payment amount.

                                        V. ATTORNEY FEES

       Codekas argues that the trial court improperly awarded attorney fees to Cornell under RCW

26.09.260(13) and CR 11 because Codekas’s cross petition and defense to Cornell’s petition to

modify the parenting plan was “‘not well grounded in fact’” and “‘interposed for an improper

purpose.’” Opening Br. of Appellant at 30. Cornell argues that the trial court’s award of attorney

fees was supported by the record and adequate findings. Cornell also requests fees on appeal under

RAP 18.1 and RCW 26.09.140.

       Attorneys and parties who sign and file a pleading, motion, or legal memorandum to the

court must comply with CR 11 requirements. These include that the pleading is well grounded in

fact and warranted by existing law and that it was not brought to harass, cause unnecessary delay,

or increase costs in litigation. CR 11. The rule’s purpose is to deter baseless filings and curb

abuses of the judicial system but not to chill enthusiasm or creativity in pursuing factual or legal

theories. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992). CR 11 requires

a pleading have a factual and legal basis. When a court finds that either is missing, the court must

also find that the pleading’s author failed to conduct a reasonable inquiry into the pleading’s factual

and legal basis. Bryant, 119 Wn.2d at 220.

       We review an attorney fee award for an abuse of discretion, and we will not interfere with

the award unless the trial court abuses its discretion by basing its decision on unreasonable or


                                                  27
No. 51305-6-II


untenable grounds. Bay v. Jensen, 147 Wn. App. 641, 659, 196 P.3d 753 (2008). Similarly, we

review a trial court’s decision on the question of bad faith for abuse of discretion. In re Pearsall-

Stipek, 136 Wn.2d 255, 265, 961 P.2d 343 (1998).7 Under RCW 26.09.260(13), “[i]f a court finds

that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court

shall assess the attorney’s fees and court costs of the nonmoving parent against the moving party.”

Bad faith litigation includes prelitigation misconduct, procedural bad faith, and substantive bad

faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999).

       The trial court found that Codekas’s cross petition for a modification was an abusive use

of conflict and that Codekas held the opinion that C.C. was sexually abused up until the day of

trial, which “complicated the litigation.” 4 VRP at 614. The trial court found that Codekas’s

actions “intended to influence the outcome” of the litigation and “considering that all of the

investigating agencies had concluded their work and essentially found the allegations to be without

merit,” the trial court ordered sanctions under RCW 26.09.260(13) and CR 11 for bad faith

litigation on behalf of Codekas. 4 VRP at 614. The court awarded $5,000 to Cornell.

       The trial court also made written findings to support its imposition of sanctions. The trial

court stated that Codekas’s cross petition for a modification and defense to Cornell’s petition was

made in bad faith, not well grounded in fact, and interposed for improper purpose such as to harass

Cornell and to improperly leverage her into dismissing her modification petition. To support its

finding, the trial court referenced Codekas dropping his cross petition for a modification on the




7
  In the absence of any findings of bad faith, the trial court abused its discretion in awarding
attorney fees under the authority requiring a finding of bad faith. Pearsall-Stipek, 136 Wn.2d at
266-67.

                                                 28
No. 51305-6-II


day of trial, Codekas’s lack of credibility, and the testimony of Hutchins-Cook and the GAL,

whose investigations contradicted allegations made by Codekas in support of his cross petition.

       Codekas challenges the trial court’s finding that his cross petition and defense to Cornell’s

petition were made in bad faith, arguing that “it is not bad faith to defend against a petition for

modification” nor was his cross petition brought in bad faith just because he “failed to prove his

allegations.” Opening Br. of Appellant at 31.

       However, by December 14, 2015, both CPS and the Tacoma Police Department had

determined that the molestation allegation was unfounded. Codekas did not drop his protection

order against S.C. until January 2016, and he dropped the order in exchange for Cornell dropping

her domestic violence protection order against him. Codekas also referenced the molestation

allegation in his petition for modification in July 2016.

       Furthermore, Codekas was not simply defending against Cornell’s petition for

modification. Codekas filed a cross petition to modify the parenting plan in July 2016, which

sought primary custody. At trial, in October 2017, Codekas testified that in as early as April 2017,

his position had changed and he sought to maintain only split custody. However, Codekas did not

drop his cross petition seeking primary custody until months later, on the day of trial.

       Codekas’s trial testimony revealed that Codekas had no intention of seeking sole custody,

confirming that this cross petition to modify the parenting plan was brought in bad faith and for an

improper purpose. In this context, dropping his petition the day of trial shows “prelitigation

misconduct,” which suggests Codekas’s motivation for filing his petition was out of spite against

Cornell. His actions are a true abuse of the justice system.




                                                 29
No. 51305-6-II


       The trial court also based its award on Codekas’s lack of credibility, Hutchins-Cook’s

report, and the GAL report. As stated above, we do not substitute our judgment for the trial court’s

judgment, weigh the evidence, or evaluate witness credibility. Wilson, 165 Wn. App. at 340. The

GAL report states that she has “serious concerns” about how Codekas and Low handled the sexual

assault allegation, and both reports, in addition to the agencies investigating the allegation, found

that the allegation was unfounded. CP at 33. Still, Codekas dismissed only his sexual assault

petition against S.C. when Cornell agreed to dismiss her domestic violence protection order against

Codekas. The trial court did not abuse its discretion by exercising its equitable powers by awarding

fees based on bad faith pursuant to RCW 26.09.260(13) and CR 11.

                                 VI. ATTORNEY FEES ON APPEAL

       Cornell requests her fees under RAP 18.1 and RCW 26.09.140, arguing that Codekas’s

appeal was frivolous. Codekas argues that because his appeal is “well-grounded in law and in fact;

indeed, requiring reversal,” we should deny Cornell’s request for fees on appeal. Reply Br. of

Appellant at 15.

       RCW 26.09.140 gives appellate courts “discretion to award attorney fees to either party

based on the parties’ financial resources, balancing the financial need of the requesting party

against the other party’s ability to pay.” In re Marriage of Pennamen, 135 Wn. App. 790, 807-

08, 146 P.3d 466 (2006). A showing of financial need must be made by affidavit and filed no later

than 10 days before we are scheduled to consider the appeal. RAP 18.1(c). Cornell has not filed

an affidavit of need at this time, thus she is not entitled to fees under RAP 18.1(c).

       Under RAP 18.1(a), a party on appeal is entitled to attorney fees if a statute authorizes the

award. RAP 18.9 authorizes an award of compensatory damages against a party who files a


                                                 30
No. 51305-6-II


frivolous appeal. See Kearney v. Kearney, 95 Wn. App. 405, 417, 974 P.2d 872 (1999). An appeal

is frivolous if there are “‘no debatable issues upon which reasonable minds might differ, and it is

so totally devoid of merit that there was no reasonable possibility’ of success.” In re Recall of

Feetham, 149 Wn.2d 860, 872, 72 P.3d 741 (2003) (internal quotation marks omitted) (quoting

Millers Cas. Ins. Co. of Texas v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983)). We consider the

record as a whole and resolve all doubts against finding an appeal frivolous. Delany v. Canning,

84 Wn. App. 498, 510, 929 P.2d 475 (1997) (quoting Streater v. White, 26 Wn. App. 430, 435,

613 P.2d 187 (1980)).

       Although the majority of Codekas’s claims lack merit, Codekas’s appeal is not totally

devoid of merit. Feetham, 149 Wn.2d at 872. Codekas succeeded in striking three findings of fact

and on the issue of Cornell’s retirement contributions. Therefore, we decline Cornell’s request for

attorney fees on appeal on this basis.

       Last, RAP 18.1(b) requires a party to devote a section of its opening brief to the request for

fees and include supporting argument. Cornell’s brief simply states, “Cornell requests her fees on

the authority of RAP 18.1 and RCW 26.09.140 and that his appeal is frivolous.” Corrected Br. of

Resp’t at 20. Her brief does not provide any substantive argument why she should be awarded

fees due to Codekas’s “frivolous appeal.”       Because Cornell does not provide us with any

substantive argument, we deny her request for an award of attorney fees on appeal.

                                         CONCLUSION

       We hold that the trial court’s domestic violence finding, and findings of fact 2, 11, 13, 18,

19, and 31 are supported by substantial evidence on the record. We remand to the trial court to

correct findings of fact 2, 11, and 13 consistent with this opinion and strike findings of fact 3, 4


                                                31
No. 51305-6-II


and 32. We further hold that the trial court did not abuse its discretion when finding Codekas’s

income was “unknown” and imputing his income. We hold that the trial court abused its discretion

when deducting Cornell’s retirement contributions from her income calculations and instruct the

trial court to strike Cornell’s contributions and recalculate her income for child support purposes.

Last, we hold that the trial court did not abuse its discretion when awarding Cornell attorney fees

and we decline to award Cornell fees and costs on appeal.

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

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

it is so ordered.



                                                     CRUSER, J.
 We concur:



 WORSWICK, P.J.




 GLASGOW, J.




                                                32
