       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of:               No. 78771-3-I
                                                 (Consolidated with No. 79170-2)
 AMEENA AAMER,
                                                 DIVISION ONE
                                Respondent,
                                                 UNPUBLISHED OPINION
               and

 SHARIEF YOUSSEF,

                               Appellant.        FILED: March 2, 2020


       CHUN, J.   —   On two occasions, Sharief Youssef took his daughter, H.Y., to

Edmonds Family Medicine after picking her up from the home of his ex-wife

Ameena Aamer. Youssef claimed that he saw injuries on H.Y. and that she told

him her “mama” had hit her. While Child Protective Services (CPS) conducted

an investigation, Youssef moved for a restraining order against Aamer and filed a

petition to modify their parenting plan. The commissioner determined that Aamer

had credible explanations for H.Y.’s injuries and denied Youssef’s motion for a

restraining order. A different commissioner, sitting pro tem, found that Youssef

had acted in bad faith in bringing the petition for modification and awarded Aamer

$6,461 .50 in attorney fees. In reaching this finding, the commissioner indicated

that Youssef had filed certain motions in the litigation, which had actually been

filed by Aamer. The commissioner also said that Youssef had filed two petitions
 No. 78771-3-1/2


for modification, when he had filed only one such petition. Because the

commissioner relied on inaccurate facts to determine that Youssef acted in bad

faith, we reverse.

                                  I. BACKGROUND

        H.Y., the child of Aamer and Youssef, was born in March 2015.

        On May 6, 2016, the trial court entered a Decree of Dissolution and a

Permanent Parenting Plan for Aamer and Youssef. Later that month, Aamer filed

motions for clarification and revision that the court denied.

       Youssef claimed, that after he picked up H.Y. from Aamer’s home on

June 13, 2017, he noticed injuries on her. Youssef said that when he asked H.Y.

about her injuries, she said “‘wawah’, ‘edrab’, and ‘mama” in her native

language, which meant “Ouwie’, ‘Hit’, and ‘Mama.” Youssef took H.Y. to

Edmonds Family Medicine and told them about what H.Y. had said regarding her

injuries. Dr. Kelly White examined H.Y. and reported “bruising with small

abrasions on both dorsal feet in a symmetrical pattern” and “[l]inear areas of

bruising on [right] upper inner forearm.” Given the comments that Youssef said

H.Y. had made about her injuries, Dr. White contacted CPS.

        On June 17, 2017, Youssef again noticed bruising on H.Y. after picking

her up from Aamer’s home. Youssef said that H.Y. again said “wawah” and

“mama” when he asked about a bruise on her face. Youssef took H.Y. back to

Edmonds Family Medicine. Advanced registered nurse practitioner (ARNP)

Ashley Adrienne Rohde examined H.Y. ARNP Rohde noted H.Y. had ‘[b]ruising

to [right] periorbital area” and “healign [sic] bruising and abrasions to dorsum of


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 No. 78771-3-1/3


 feet bilaterally.” ARNP Rohde called CPS, who recommended calling the police

 and requesting a protective order. ARNP Rohde then called Youssef and

 recommended that he not return H.Y. to Aamer and that he obtain a protective

 custody order.

        Youssef requested an immediate restraining order against Aamer for him

and H.Y. through the court’s ex parte department on June 21, 2017. The

commissioner told Youssef that he did not have jurisdiction to grant a restraining

order because, as Youssef had not yet filed a petition for modification of the

parenting plan, there was no pending action. The court recessed so Youssef

could file a petition for modification. After the hearing resumed, Aamer testified

that, regarding the red marks on H.Y.’s feet, the child had played with lipstick the

night before. Aamer additionally testified that the bruising on H.Y.’s face

occurred when the child was kneeling on a “bucket container” and “the other end

popped up and it caught her.” The commissioner determined that Aamer’s

explanations were “perfectly credible” and stated that “[H.Y.’s injuries] don’t seem

to be so serious that it’s likely the results [sic] of abuse, but I can’t tell.” The

commissioner denied the restraining order.

       On March 2, 2018, Youssef filed a motion for adequate cause decision on

his petition to modify the parenting plan. A different commissioner, sitting pro

tem, determined that adequate cause did not exist for the matter to proceed.

Furthermore, the commissioner found that Youssef did not bring the petition in

good faith and awarded Aamer $6,461.50 in attorney fees. The commissioner

dismissed Youssef’s petition to modify the parenting plan.


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 No. 78771-3-114


             Youssef moved for reconsideration on April 26, 2018, which the

 commissioner denied. The commissioner found that Youssef “failed to allege

 specific facts upon which the commissioner below incorrectly relied upon, or any

 basis under CR 59 on which the court should reconsider its ruling.” The

commissioner further found that Youssef brought the motion for reconsideration

“in bad faith and without any legal basis” and that the motion was “further

evidence of [Youssef’s] intransigence.” The commissioner awarded Aamer an

additional $3,640 in attorney fees.

             On May 7, 2018, Youssef moved for revision of the commissioner’s

“March 16, 2018 Order on Adequate Cause and April 26, 2018 Order on

Reconsideration to remove the attorney fee awards against [him].” The court

entered an Order on Revision on July 5, 2018. The court determined that the

commissioner’s decision to award fees with respect to the March 16, 2018 Order

on Adequate Cause was justified, but remanded for further proceedings because

there was no fee declaration in the record to support the amount of the award.

Because the record did not contain a fee declaration, the court could not find that

Youssef’s motion for reconsideration was in bad faith or intransigent and

accordingly reversed the award of $3,640 in fees.1 Youssef appealed to this

court.



         Aamer argues that the trial court erred by reversing the award of $3,640. But
         1

because Aamer did not file a cross-appeal and Youssef does not assign error to this
reversal, Aamer cannot now challenge this decision on appeal. See State v. Sims, 171
Wn.2d 436, 441-42, 256 P.3d 285 (2011) (holding the State could not challenge the
criminal defendant’s sentence as a whole when it did not cross-appeal and the
defendant appealed only a single sentencing condition).

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No. 78771-3-115


       On October 3, 2018, while the appeal was pending, the commissioner

entered Findings in Support of Award of Attorney’s Fees. The findings state that,

when ordering the award, the commissioner had considered a three-page

document “purport[ing] to Iist[] the total fees incurred by [Aamer] as of March 16,

2018,” with a total of $6,461 .50—the amount awarded. The commissioner also

stated “[t}he fees were awarded on the basis of a finding of bad faith in filing a

Petition for Modification.” The commissioner noted that CPS determined both

reports of abuse “were ‘unfounded.” Moreover, the commissioner found that

Youssef “was aggressively pursuing litigation over the parenting plan” and that

his “pursuit of litigation and repeated attempts to modify the parenting plan was in

bad faith.” The commissioner cited case law addressing bad faith under

RCW 4.84.185 and CR 11 (citing Skimming v. Boxer, 119 Wn. App. 748, 756, 82

P.3d 707 (2004) and Wilson v. Henkle, 45 Wn. App. 162, 175, 724 P.2d 1069

(1986)). Youssef appealed.

       This court consolidated Youssef’s appeals of the Order on Revision and

Findings in Support of Award of Attorney’s Fees.

                                   II. ANALYSIS

      Youssef argues that the commissioner erred in awarding fees against him

because he did not act in bad faith. Aamer claims the facts of the case support

the commissioner’s bad faith determination. Because the commissioner relied on

incorrect facts when making her finding of bad faith, we determine that she

abused her discretion.




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 No. 78771-3-116


           Where a party appeals a ruling on a motion for revision of a

 commissioner’s decision, our review is of the superior court’s decision. See

 State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004) (“Once the superior

court makes a decision on revision, the appeal is from the superior court’s

decision, not the commissioner’s.”). If a party does not move for revision before

the superior court, RCW 2.24.050 permits a direct appeal of a commissioner’s

ruling. Where a party challenges a commissioner’s findings of facts and

conclusions of law, we review the findings for substantial evidence and the

conclusions of law de novo. In re Marriaqe of Dodd, 120 Wn. App. 638, 643, 86

P.3d 801 (2004). Here, Youssef appealed both the superior court’s order on

revision and the commissioner’s ruling on remand.

        Courts may award a party attorney fees if a contract, statute, or

recognized ground in equity authorizes it. Bowles v. Wash. Dep’t of Ret. Sys.,

121 Wn.2d 52, 70, 847 P.2d 440 (1993). Here, the commissioner awarded the

fees based on bad faith and cited case law discussing both RCW 4.84.185 and

CR 11.2

       2   Youssef appears to argue for the first time in his Reply that the commissioner
went beyond the scope of the trial court’s remand by making findings relating to bad
faith. To the extent that Youssef is asserting that we cannot consider the
commissioner’s bad faith findings, we generally do not address arguments raised for the
first time in a reply brief, even if they are of constitutional magnitude, because the other
party does not have a fair opportunity to respond. State v. Peerson, 62 Wn. App. 755,
778, 816 P.3d 43 (1991). Moreover, Youssef did not object to the findings below or
move to revise the findings before the superior court on this ground. As such, he did not
preserve this objection for appeal. RAP 2.5(a) (“The appellate court may refuse to
review any claim of error which was not raised in the trial court.”).
         Additionally, Youssef claims the case law the commissioner cited in the Findings
in Support of Award of Attorney’s Fees is inapposite because it does not address
RCW 26.09.260, which governs modifications of a parenting plan or custody decree.
But RCW4.84.185 applies to “any civil action” and CR11 governs all civil proceedings.

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 No. 78771-3-1/7


        Courts may award attorney fees under RCW 4.84.185 in any civil action

 where a claim “was frivolous and advanced without reasonable cause.” “The

 statute is designed to discourage abuses of the legal system by providing for an

 award of expenses and legal fees to any party forced to defend against meritless

claims advanced for harassment, delay, nuisance, or spite.” Skimming, 119 Wn.

App. at 756 (internal citation omitted). CR 11 permits courts to award attorney

fees incurred because a party acted in bad faith by filing pleadings for an

improper purpose or filed pleadings that are not grounded in fact or warranted by

law. Loc Thien Truong v. Allstate Prop. & Cas. Ins. Co., 151 Wn. App. 195, 207-

08, 211 P.3d 430 (2009) (citing Skimming 119 Wn. App. at 754). If a party

persists with repeated and wholly meritless efforts, courts can infer they are

motivated by spite rather than by a sincere belief in the sufficiency of their claims.

See In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 267, 961 P.2d 343 (1998)

(“Given the repeated and wholly meritless efforts to recall [the respondent], [the

appellant’s] persistence suggests that he may be motivated by spite rather than

by a sincere belief in the sufficiency of the recall charges.”).

        Here, the commissioner based the attorney fee award on the finding that

Youssef had acted in bad faith. The commissioner reached this finding because

“the history of litigation as shown on the docket was that the respondent/father


Piper, 184 Wn.2d at 786-87 (acknowledging that RCW 4.84.185 applies in any civil
action); Burtv. Dept of Corr., 168 Wn.2d 828, 837, 231 P.3d 191 (2010) (“CR81
provides that, generally, the civil rules govern all civil proceedings, ‘[e]xcept where
inconsistent with rules or statutes applicable to special proceedings  .   .     Youssef does
                                                                               .“).

not allege any inconsistency between RCW 4.84.185 and RCW 26.09.260. Accordingly,
the commissioner had the authority to award attorney fees not just under RCW
26.09.260, but also pursuant to RCW4.84.185 and CR11.

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 No. 78771-3-1/8


was aggressively pursuing litigation over the parenting plan.” The commissioner

pointed to a motion for clarification, motion for revision, appeal of the original

parenting plan, motion for a restraining order, and petitions for modification. But

the commissioner incorrectly attributed the motions for clarification and revision,

which Aamer had filed, to Youssef. Aamer concedes that she filed these

motions. In making its determination, the commissioner also incorrectly stated

that Youssef had filed two modification petitions. Aamer concedes that Youssef

filed only one petition for modification.

       The commissioner otherwise found bad faith because Youssef filed the

motion for a restraining order, modification petition, and appealed the parenting

plan back in 2016. But Youssef filed the motion for a restraining order after

ARNP Rohde spoke with CPS and recommended that he seek one.

Furthermore, Youssef filed the modification petition only after the commissioner

told him he needed to for jurisdiction to exist over his motion for a restraining

order. Additionally, while persistence can indicate spite, rather than by a sincere

belief in the sufficiency of his claims, motivated a party to pursue litigation, we

cannot say that Youssef’s appeal of the parenting plan—which mostly raised an

evidentiary issue—was wholly meritless. See In re Recall of Pearsall-Stipek, 136

Wn.2d at 267; In re Marriage of Aamer, noted at 199 Wn. App. 1035 (2017).

Furthermore, Youssef filed that appeal in 2016 and the issues addressed in it

bear no relation to his 2017 motion for a restraining order or petition for

modification.




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 No. 78771-3-1/9


        The commissioner awarded the attorney fees through finding bad faith, but

 in doing so relied on incorrect facts. The remaining facts relied on are not,

 standing alone, sufficient to find Youssef acted in bad faith. Accordingly,

 substantial evidence did not support the commissioner’s findings. We reverse

the attorney fee award.3

        Reversed.



WE CONCUR:




                                                                      ‘,/,




        ~ While Youssef appealed both the superior court’s order on revision and the
commissioner’s decision on remand, given our decision, we need not reach the issue
whether the trial court erred in its ruling on revision.
        Also, Aamer asks us to award her attorney fees on appeal under
RCW26.09.140. RCW26.09.140 authorizes a court to award attorney fees based on
the relative resources of the parties and the merits of the appeal. In re Marriage of
Leslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998). Based on all the circumstances of
this case, we decline to award fees to Aamer. Since we do not award fees to Aamer, we
do not address Youssef’s argument that Aamer’s briefing fails to properly request fees
on appeal.

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