                                                                                                                 FILED
                                                                                                         COURT OF APPEALS
                                                                                                              DIVISION II
                                                                                                      10f4DEC 16 IM 8: 34
                                                                                                      STATE             HLH   ON
   IN THE COURT OF APPEALS OF THE STATE OF WASHIW9T

                                                    DIVISION II

In the Matter of the Welfare of:                                                   No. 45135 -2 -II


G.D. B.,


                                         Child,


Rhiannon Djnase Smith,

                                         Appellant,


           and



                                                                             UNPUBLISHED OPINION
Andrew Wesley Bertrand,

                                         Respondent.


       WoRSwICK, J. —              Following its denial of Andrew Bertrand' s petition opposing Rhiannon
Smith' s relocation to Costa Rica with their daughter, the trial court awarded Bertrand $4, 000 in

attorney fees based on Smith' s intransigence. Because, on the record before us, we cannot
discern any legitimate basis supporting an award of attorney fees to Bertrand, we reverse and
vacate the trial court' s attorney fees award.

                                                            FACTS



        In January 2013, Smith filed a notice of intent to relocate to Costa Rica with her and
Bertrand' s daughter. Bertrand filed a petition objecting to Smith' s intended relocation and

sought modification of Smith' s proposed custody decree, parenting plan, and residential

schedule. A relocation trial took place on April 23 and May 2. On May 10, the trial court

announced        in   an oral   ruling that it   would   deny Bertrand' s   petition   opposing Smith'   s relocation
No. 45135 -2 -II




with their daughter. At the May 10 hearing, Bertrand' s attorney told the trial court that Bertrand

was seeking attorney fees from Smith, stating:

          I just want the Court to be mindful that we have spent a huge amount of money to
          litigate this case largely because we were not provided with the kind of information
          that   one     should     get    in         My request for attorney fees is still
                                                a relocation   case.


          outstanding. I would ask the Court to consider that.

Clerk' s Papers ( CP) at 54. On June 20, Bertrand' s attorney filed a declaration with attached

billing statements showing that she had billed Bertrand $5, 055. 00 for services performed through
April 22, 2013,         and $    8, 647. 43 for   services performed       from April 23, 2013 to June 20, 2013. The


affidavit and attached billing statements did not segregate fees that were expended as a result of

Smith' s alleged conduct in failing to provide Bertrand " with the kind of information that one

                 in   a relocation case"        from those fees      expended    for   other reasons.   CP at 54.
should get




          On June 21, 2013, the trial court held a hearing on the final presentation of its order

 denying Bertrand' s petition opposing Rhiannon' s relocation with their daughter. At the hearing,
 Bertrand' s attorney again raised the issue of attorney fees, and the following exchange took
 place:




                        Petitioner'    s counsel]:       The other issues before the Court are the attorney
          fees. Again, I know that I sound like a broken record. I don' t mean to sound like
          a broken record, but I really do need to make my point here.
                        Trial    court] :   All right.
                        Petitioner'    s counsel]:       This was a relocation that was filed by the mother.
           She filed nothing before trial. She communicated nada before trial. Everything that
           we found out about this relocation we found out in the context of testimony.
                        Trial    court] :   Right, right.
                         Petitioner'   s counsel]:        It is—   and I think that the Court understands how
           difficult that was for my client.
                         Trial   court]:    I think so.
                         Petitioner'   s counsel]:     Before trial he had already spent $5, 000 in legal fees.
           We have        expended another          fairly   large   chunk....   But the fees here have fallen on




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No. 45135 -2 -II




          my client. You know, he'                    s   losing his   daughter.      He' s going to be paying long
          distance travel expenses ...                    to maintain a relationship, and we did all the legal
          work, and that shouldn' t have been the case.

Report of Proceedings ( RP) at 5 -6. In response, Smith' s counsel argued that attorney fees were

not an appropriate sanction for Smith' s alleged failure to provide information regarding her

intended relocation because Bertrand did not request any discovery from Smith. Smith' s counsel

further argued:


          But [ Bertrand'          s   attorney] has this      request       for attorney fees.   We' re the prevailing
          party in this case. There' s no statute that addresses when you' re a prevailing party
           in a family law case that I know of that I looked for, but there is a statute that
           addresses attorney fees. She states no basis whatsoever for requesting attorney fees.
           Her            didn' t have to defend this. He didn' t have to get an attorney. There is
                       client

           no      requirement to get an attorney in a civil matter....  So there' s no basis stated
           except she' s saying I didn' t know enough about the case to defend against it... .
           It' s   a civil matter.       There are civil rules that deal with getting discovery from the
           other side.          Well, [ Bertrand' s attorney] could have told me, said come to my office;
           let'    s   talk   about    this   some more.     She didn' t.


RP   at   23 -24. In          rebuttal,   Bertrand'   s   attorney   stated, "   It shouldn' t be incumbent on me to be

 forced into           more expense       to do   discovery    when     it —it   really (inaudible) common sense and

 common       courtesy."          RP at 27. After hearing arguments on the issue of Bertrand' s requested

 attorney fees, the trial court stated:

           I will say this on attorney' s fees: This case is close. I don' t think sanctions are the
           appropriate remedy under [RCW] 26.09. 550, but I do think that under the facts that
            Bertrand' s attorney] has relayed to me that the mother' s conduct rises to the level
           of intransigence and by extending the trial needlessly by repeatedly failing to
           provide the father with information on her proposed relocation. I don' t even know
            if a trial would have been necessary; I just don' t know. In a relocation proceeding
            one should not be surprised in trial by the evidence. Now, I think there is blame on
            both sides here, but I think there is more blame on the mom' s side than on the dad' s
            side, as far as I can tell.
                           I am going to order fees to the father in the amount of $4, 000. That is only
            part of what is owed.




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No. 45135 -2 -II




RP at 28 -29. The trial court' s final order denying Bertrand' s petition states:

          The Father had little current info on Costa Rica at trial [ and] was frustrated by new
          information rec' d during trial re Costa Rica. The court finds the mother' s actions
                                                                     length [            or even require) trial [ and]
                         cooperating to frustrate [
          in [   not]                                     and]                  sic] (

          awards the father $4, 000 in attys fees.

CP at 74. Smith appeals the portion of the trial court' s order awarding $4, 000 in attorney fees to

Bertrand.


                                                          ANALYSIS


           Smith asserts that the award of attorney fees to Bertrand must be vacated because there

exists no   legal       or   factual basis in   support of     the   award.'     On the record before us, we agree.


Accordingly, we reverse and vacate the award of attorney fees to Bertrand.
           A trial court has discretion to award attorney fees based on a party' s intransigence. In re

Marriage of Bobbitt, 135 Wn.                 App. 8,   29 -30, 144 P. 3d 306 ( 2006). We thus review a trial


 court' s award of attorney fees based on a party' s intransigence for an abuse of discretion.
 Bobbitt, 135 Wn. App. at 29 -30.

           An attorney.fees award based on a party' s intransigence is an equitable remedy and
     when intransigence is established, the financial resources of the spouse seeking the award are

 irrelevant." In        re   Marriage of Morrow, 53 Wn.               App.   579, 590, 770 P. 2d 197 ( 1989); In re


 Marriage of Greenlee, 65 Wn.                 App.   703, 708, 829 P. 2d 1120 ( 1992). Appellate courts have


 upheld a trial court' s award of attorney fees based on intransigence where the intransigent party

 engaged in foot -dragging and obstruction, filed unnecessary or frivolous motions, refused to


 1
     Bertrand did       not    file   a response   to Smith'   s appeal   brief.
No. 45135 -2 -II




cooperate with the opposing party, refused to comply with discovery requests, or engaged in any

other conduct that made the proceeding unduly difficult or costly. Greenlee, 65 Wn. App. at 708

 citing Morrow, 53 Wn. App. at 591; Chapman v. Perera, 41 Wn. App. 444, 455 -56, 704 P.2d
1224 ( 1985); Eide      v.   Eide, 1 Wn.   App.   440, 445, 462 P. 2d 562 ( 1969)); see also In re Marriage


of Foley, 84 Wn.       App.   839, 846, 930 P. 2d 929 ( 1997);     In re Marriage of Crosetto, 82 Wn. App.

545, 564, 918 P. 2d 954 ( 1996).

         In general, trial courts must segregate fees caused by intransigence from those fees

incurred for other reasons. Crosetto, 82 Wn. App. at 565. But when a party' s intransigence

 permeate[ s] the entire proceedings, the court need not segregate which fees were incurred as a

result of   intransigence     and which were not."      In re Marriage ofBurrill, 113 Wn. App. 863, 873,

56 P. 3d 993 ( 2002).


          The record before us does not reveal any specific acts of misconduct by Smith that

would justify an attorney fees award to Bertrand based on her intransigence. Here, Bertrand
requested attorney fees based on the allegation that he was " not provided with the kind of
 information that      one should get   in   a relocation case,"   but he did not specify ( 1) what information

 he   should   have   received   from Smith, ( 2)   whether Smith had any obligation to provide that

 information to him, ( 3)       how that information was relevant to the issues for the relocation trial, or

  4) how the failure to provide such information caused him additional legal expenses. CP at 54.

 More importantly, Bertrand did not state that he had ever requested such information from
 Smith, either informally or through the discovery rules. And his submitted billing statement did
 not segregate the legal fees expended as a result of Smith' s alleged failure to provide him with



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No. 45135 -2 -II




such information from the legal fees expended for other reasons. Absent these necessary details,

we cannot discern whether Smith had engaged in misconduct that made the relocation


proceedings unduly difficult or costly.

         The trial court' s final order awarding attorney fees to Bertrand was similarly vague as to

the misconduct forming the basis for its intransigence finding, merely stating that Bertrand had
 little current info on Costa Rica at trial [ and] was frustrated by new information [ received]

during trial [regarding] Costa Rica" and that Smith' s " actions in not cooperating" frustrated and
lengthened the trial. CP at 74. As with Bertrand' s attorney fees request, this order does not

reveal how Smith had failed to cooperate or how her failure to cooperate frustrated and

lengthened the trial. And there is nothing in the record before us, beyond the vague and

conclusory allegation contained in Bertrand' s attorney fees request, which shows that Smith had
failed to cooperate during the relocation proceedings. Additionally, the record before us does not
reveal how the trial court calculated $ 4, 000 in attorney fees for Smith' s intransigence. Because

                     did         find that Smith'   s   intransigence " permeate[ d] the   entire proceedings,"   it was
 the trial   court         not




 required to segregate fees it found were caused by her intransigence from those fees incurred for

 other reasons. Burrill, 113 Wn. App. at 873.




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No. 45135 -2 -II




        Because, on the record before us, we cannot discern any specific acts of misconduct by

Smith that would support an attorney fees award based on her intransigence, we reverse and

vacate that portion of the trial court' s June 24, 2013 order awarding attorney fees to Bertrand.

        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.




 We concur:



                        A.cx




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