                                                           COURTOFi'APPEALS DIV I
                                                            STATE OF WASHINGTON

                                                            2018 APR 23 A11 8: 31




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Parentage/Parenting)      No. 76165-0-1
and Support of 0.P.,                    )
                                        )      DIVISION ONE
                         A minor child. )
                                        )
TAYLOR KATHERINE SAMUEL,                )
                                        )
                         Respondent, )         UNPUBLISHED OPINION
                                        )
               and                      )
                                        )
DAVID THOMPSON PARKER,                  )
                                        )
                         Appellant.     )      FILED: April 23, 2018

      SCHINDLER, J. — David Parker appeals the August 8, 2016 "Temporary Family

Law Order" and award of attorney fees, the September 19, 2016 decision denying his

motion to vacate or for reconsideration, and the November 14,2016 decision awarding

attorney fees. Because the appeal of the August 8 order and September 19 decision is

untimely, we consider only the November 14 order and the award of attorney fees to

Samuel based on "intransigence and CR11." Because the court did not enter findings

of fact and conclusions of law and the record is inadequate for review, we remand.

                                        FACTS

      Taylor Katherine Samuel and David Thompson Parker are the parents of O.P.

The Snohomish County Superior Court entered a parenting plan on December 21,
No. 76165-0-1/2

2015. The parenting plan designates Samuel as the residential parent of O.P. The

parenting plan gives Parker residential time with O.P. every other weekend from Friday

after school until Sunday evening. The parenting plan states O.P. will reside with

Samuel during the summer but gives Parker an additional weekend in July and in

August. According to the parenting plan, O.P. spends the Fourth of July holiday with

Samuel in even years and with Parker in odd years. The parenting plan states, "In the

event that the Monday following father's residential time is a holiday and father has the

day off, he may have [0.P.] until 3 pm on Monday afternoon."

        Section 3.6 of the parenting plan governs vacations with 0.P.:

       Each parent shall have one week of vacation with the child during the
       summer in the year following her 5th birthday. Each parent shall have 2
       non-consecutive weeks with the child in the year following her 8th
       birthday. Each parent shall give notice of his/her intended vacation time
       by May 1 of each year. If there is a conflict of dates, father's dates will
       control in even years and mother's dates will control in odd years.

       Samuel is married to Quade Samuel. Quade serves in the United States Navy.1

Samuel, Quade,and O.P. planned to visit Quade's parents in California in July 2016. At

the time, Samuel was around seven months pregnant. Quade took military leave for the

trip. Samuel purchased plane tickets. The flight was scheduled to leave Seattle at 7:40

a.m. on Monday, July 4.

        In June, Samuel informed Parker of the travel plans. Parker responded by e-

mail. The June 27 e-mail states, in pertinent part:

        It has come to my attention that you are violating the parenting plan and
        can be charged with contempt of court. According to Section 3.6 neither
        you or [sic] I are allowed to take [0.P.] on vacation until after she turns 5
        years old. I am fully aware that you intend to take her to California for one
        week of vacation, possibly even longer. [0.P.] is currently 3 years old, so

        1 We refer to Quade Samuel by his first name for purposes of clarity and mean no disrespect by
doing so.


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No. 76165-0-1/3

       this directly violates that agreement with the ages that you set(meaning
       that you have full awareness). In addition, each parent is required to
       notify the other parent with the intentions to have a vacation with [0.P.] by
       May 1st, which you also failed to do.

Parker told Samuel,"According to what we signed,[0.P.] should be in daycare

throughout the week. If you choose to go fully against this then we can make the

appropriate court arrangements for contempt."

       Samuel contacted her attorney and responded to Parker with additional

information about the trip: "[O.P.] and I will be gone from July 4, 2016, through July 15,

2016. We will be in Corona, California, for our stay, visiting relatives. You will not miss

any of your time with [0.P.]."

       Parker responded on Tuesday, June 28. Parker asserted Samuel was violating

the parenting plan because vacation time is not permitted until after O.P. turns five:

      [A] violation is a violation, and you have made 4 by this point: not
      consulting me for her change of daycare, not notifying me of vacation by
      May 1st, taking her on vacation before she is 5, and having two
      consecutive weeks (which is never allowed). You may have more
      residential time, but you do not get more vacation time.

       To put it in terms that you may understand:
       If you believe that the [parenting plan] as written permits you to take our
       lovely daughter to California for two weeks this summer,then you should
       not have a problem with me taking [0.P.] to Colorado for two weeks to
       visit relatives later this summer. I am sure you will be completely fine with
       it considering that you are doing the exact same.

Parker also noted he was entitled to additional time because July 4 was a holiday:

       According to the [parenting plan], I am to have [0.P.] on holidays following
       my weekends with her. Holiday times begin at 9 am for the parent they
       are designated to. Given this, I will meet you in Arlington at 9 am on
       Monday, July 4th to drop-off our lovely daughter.

Parker said that if Samuel took O.P. to California with her, "then resolution of dispute

will be taken, which is going to mediation or possibly court."


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No. 76165-0-1/4

      On Friday, July 1, Samuel filed a motion for a restraining order in Island County

Superior Court. Samuel asked the court to issue an order requiring Parker to comply

with the parenting plan and authorize a civil stand by. Citing Parker's June 28 e-mail,

Samuel alleged Parker would not return O.P. until Monday, July 4, at 9:00 a.m. Samuel

argued Parker's "actions are intransigent and only designed to cause me stress and

cost me money." Samuel requested an award of attorney fees:

             I am asking for attorney fees because I should not have had to
      bring this motion. I am asking Mr. Parker to be ordered to do what he is
      already ordered to do. Because he is telling me he will not comply, I am
      asking to be able to request and receive police assistance.

      The court granted the motion for a restraining order and ordered Parker to "follow

the parenting plan and return the child to the mother on Sunday, July 3, 2016, at 6:00

p.m." The restraining order authorizes law enforcement to "provide a civil stand by and

use any other necessary means to return the child to the mother" if Parker fails to return

O.P. The restraining order set a hearing for July 11 at 9:30 a.m. The notice states,

"Warning! If you do not go to the hearing, the court may make orders against you

without hearing your side."2

      On Saturday, July 2, Parker picked up O.P. for the weekend. When Parker

arrived at the meeting point, Quade handed Parker the restraining order. Parker

returned O.P. on Sunday, July 3, at 6:00 p.m.

      Parker did not attend the July 11 hearing. At the conclusion of the hearing, the

court issued a Temporary Family Law Order. The court found Parker returned the child

as ordered by the immediate restraining order. The court ordered Parker to pay




      2 Emphasis in   original.


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No. 76165-0-1/5

attorney fees in the amount of $1,770. The court stated,"The order for fees is based on

respondent's intransigence."

        The court issued an amended Temporary Family Law Order on August 8. The

amended order corrects Parker's name, which was entered incorrectly in the "Debtor's

name" section of the original order.

        On August 30, Parker filed a motion to vacate the order under CR 60(b)(1),(4),

(5), and (11) and CR 60(c) or for reconsideration under CR 59. Parker argued RCW

26.25.590 did not authorize the immediate restraining order because Samuel did not

establish a threat of imminent harm and sought only to resolve an issue under the

parenting plan. Parker asserted Samuel did not notify his attorney of the proceedings.

Parker argued there was no basis for the request for attorney fees and no evidence in

the record to support finding intransigence. In opposition, Samuel filed a declaration.

        On September 19, the court held a hearing on the motion to vacate or for

reconsideration. The court denied the motion. Samuel requested fees for responding

to the motion to vacate or for reconsideration. Her attorney submitted a declaration and

supporting documents for fees in the amount of $1,761 that had been incurred after the

motion to vacate or to reconsider was filed. Parker opposed the request for attorney

fees. The court set a hearing on the motion for attorney fees for November 14.

        Parker did not appear at the November 14 hearing.3 On November 14, the court

entered an order granting Samuel attorney fees in the amount of $1,761. The order

states attorney fees are "[biased on intransigence and CR11." On December 1, Parker

filed a notice of appeal of "all orders for fees and costs."


         3 Parker asserts Samuel failed to notify him of the hearing date. He contends he did not receive a
fax with the notice of the hearing.


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No. 76165-0-1/6

                                        ANALYSIS

       Parker appeals the August 8 Temporary Family Law Order awarding attorney

fees, the September 19 denial of his motion to vacate or for reconsideration, and the

November 14 order awarding attorney fees.

       Under RAP 5.2(a), the appellant must file a notice of appeal within 30 days after

the entry of the order being appealed.- If a party files a timely motion for

reconsideration, the 30-day time limit is extended. Schaefco, Inc. v. Columbia River

Gorge Comm'n, 121 Wn.2d 366, 367, 849 P.2d 1225(1993). A motion for

reconsideration is timely if the party both files and serves the motion within 10 days after

the order is entered. CR 59(b).

       The appeal of the August 8 order and the September 19 decision is untimely.

Parker filed the notice of appeal of the August 8 order and the September 19 decision

denying the motion to vacate or for reconsideration on December 1. The notice of

appeal was not filed until well after the 30-day time limit for the August 8 order and

September 19 decision. Therefore, we address only the November 14 order awarding

attorney fees.

       The trial court has discretion to award attorney fees. In re Marrine of Mattson,

95 Wn. App. 592,604, 976 P.2d 157(1999). The party challenging the award of

attorney fees must show the court exercised its discretion in a way that was clearly

untenable or manifestly unreasonable. In re Marriage of Crosetto, 82 Wn. App. 545,

563, 918 P.2d 954 (1996). The court must enter sufficient findings of fact and

conclusions of law to develop an adequate record for appellate review of an attorney fee

award. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632(1998).




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No. 76165-0-1/7

       A court may award attorney fees for "intransigence" if one party's intransigent

conduct caused the other party to incur additional legal fees. In re Marriage of

Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992). Intransigence includes

obstruction and foot dragging, filing unnecessary motions, or making a proceeding

unduly difficult and costly. In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306

(2006).

       A court may award CR 11 sanctions on the attorney or party for filing a baseless

pleading, motion, or legal memorandum. CR 11(a). The purpose of CR 11 is to deter

baseless filings and curb abuses of the judicial system. Bryant v. Joseph Tree, Inc.,

119 Wn.2d 210, 219, 829 P.2d 1099(1992). "A filing is baseless if it is not well

grounded in fact or not warranted by existing law or a good faith argument for altering

existing law." Bldg. Indus. Ass'n v. McCarthy, 152 Wn. App. 720, 745, 218 P.3d 196

(2009).

       The record does not contain the motion for the attorney fees Samuel incurred in

responding to the motion to vacate and to reconsider. Nor does the record contain

transcripts of oral argument on the motion to vacate or for reconsideration or the motion

for attorney fees. The declaration of Samuel's attorney outlines only the expenses

incurred after the motion to vacate or for reconsideration was filed.

       The November 14 order awarding attorney fees states,"The court finds good

cause to approve this Order" and bases the award of attorney fees on "intransigence

and CR11." The court did not enter findings of fact and conclusions of law on

intransigence or the basis for CR 11 sanctions. "[T]he absence of an adequate record

upon which to review a fee award will result in a remand of the award to the trial court to



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No. 76165-0-1/8

develop such a record." Mahler, 135 Wn.2d at 435. Because the court did not enter

findings of fact and conclusions of law, we remand.4




WE CONCUR:




       4 Samuel requests attorney fees under RAP 18.9(a) or CR 11 sanctions on appeal. Because we
remand for the entry of findings of fact and conclusions of law, we deny Samuel's request.



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