                                        The Court ofAppeals
                                                 of the                                       DIVISION I
richard d. Johnson                       State 0f Washington                          J^„!JXte
Court Administrator/Clerk                       \onttlo                               600 University Street
                                                oeaiiie                                        98101-4170
                                                                                          (206)464-7750
                                                                                     TDD: (206)587-5505
January 26, 2015

Laurie Gail Robertson                              Neil Brunson
Law Offices of Jason S. Newcombe                   Po Box 1673
1218 3rd Ave Ste 500                               Richland, WA, 99352
Seattle, WA, 98101-3067
laurier@washingtonstateattorneys.com

CASE #: 71496-1-1
In re the Marriage of: Jennifer Brunson, Respondent v. Neil Brunson, Appellant

Snohomish County, Cause No. 12-3-02880-1

Counsel:

Enclosed is a copy of the opinion filed in the above-referenced appeal which states in part:

                   "Affirmed."

Counsel may file a motion for reconsideration within 20 days of filing this opinion pursuant to
RAP 12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to
seek review by the Supreme Court, RAP 13.4(a) provides that if no motion for reconsideration
is made, a petition for review must be filed in this court within 30 days. The Supreme Court
has determined that a filing fee of $200 is required.

In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by
a cost bill filed and served within ten days after the filing of this opinion, or claim for costs will
be deemed waived.

Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to
publish should be served and filed within 20 days of the date of filing the opinion, as provided
by RAP 12.3 (e).

Sincerely,



Richard D. Johnson
Court Administrator/Clerk


jh

Enclosure
c:        The Honorable George Appel
                                            r"*•-1 r   } I-f' * *"   "   ly '   " - !   '




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE MARRIAGE OF,
                                                       No. 71496-1-1
      JENNIFER L BRUNSON,
                                                       DIVISION ONE
              Respondent

      and                                              UNPUBLISHED OPINION


NEIL F. BRUNSON,

                    Appellant.                         FILED: January 26, 2015

      Spearman, C.J. — Neil Brunson appeals the trial court's orders dissolving

his marriage to Jennifer Brunson, dividing their property, and providing for the

care and support of their children. Because Neil fails to demonstrate any error or

abuse of discretion, we affirm. We also grant Jennifer's request for attorney fees

based on Neil's frivolous appeal.

                                      FACTS

       Neil and Jennifer married in July 2005 and separated on September 30,

2012. They have two daughters, A.B., born in March 2007, and L.B., born in

March 2010. During the marriage, Jennifer worked as a nurse. Neil worked

briefly in accounting, then in construction, masonry, and his own contracting

business. After losing a job, Neil began collecting unemployment benefits in

February 2012.
No. 71496-1-1/2



       On September 30, 2012, Neil called Jennifer at work and told her that L.B.

tracked nail polish all over the bedroom carpet. After her shift, Jennifer listened

to a voicemail message from Neil of nothing but the sound of L.B. "screaming

and this loud smacking sound in the background." Verbatim Report of

Proceedings (VRP) (7/10/13) at 68. When Jennifer returned home, she found

L.B. naked in the bathtub with purple bruising from the middle of her back down

on to her legs and bruising on her neck. Neil yelled at Jennifer and threatened to

kill her. When Neil left the room, Jennifer took the children and left the house.

Over the next days, Jennifer obtained a protection order. She filed a petition for

dissolution on October 26, 2012.

       At trial in July 2013, Jennifer testified that Neil began to physically abuse

her six months after they married and provided several detailed examples

occurring over the years of the marriage. After an incident in 2008, Snohomish

County police arrested Neil for domestic violence assault, but Jennifer told the

prosecutor she was not willing to testify. According to Jennifer, Neil enrolled in

domestic violence treatment, but dropped out shortly after the "charges were

dropped." VRP (7/9/13) at 76.

       Jennifer also testified that Neil had kicked the children and had previously

spanked L.B. "severely," leaving bruises. VRP (7/9/13) at 82-83. Jennifer

testified that a jury found Neil guilty of domestic violence assault in the fourth

degree based on the September 30, 2012 incident involving L.B., and presented
his judgment and sentence as evidence. VRP (7/10/13) at 156-57.
No. 71496-1-1/3



       Jennifer also presented the testimony of Janell Berger, an investigator for

Child Protective Services (CPS), and Stanley Woody, a domestic violence

treatment provider, as well as documentary evidence.

       Neil represented himself at trial. In addition to various documentary

evidence, he presented his own testimony, as well as that of his mother, Bridgid

Brunson, and his friend, Tobias Slaton.

       In December 2013, the trial court entered written orders resolving the

issues presented at trial. The trial court found that Neil failed to meet his burden

to demonstrate that a Ford truck acquired during the marriage was separate

property and that the community owed a debt to his mother. The court also

found that the parties failed to present sufficient evidence to allow a

determination of the value of the marital home, and "therefore reasonably

concludes that the home is worth the mortgage debt." Clerk's Papers (CP) at 18.

The court found that Neil took "$62,000 in marital funds at the time of separation.

Said funds came from the following sources; $38,000 from the joint Sound Credit

Union Account, $5000 from the Chase account, $7000 from the bank of America

account and $12,000 from cash located in the parties' safe in their home." CP at

18.


       In the parenting plan, the trial court limited Neil's residential time with the

children and assigned sole decision-making authority to Jennifer under RCW

26.09.191(1) and (2) based on the following findings regarding Neil's conduct:

       A history of domestic violence as defined in RCW
       26.50.010(1) or an assault or sexual assault which causes
       grievous bodily harm or the fear of such harm.
No. 71496-1-1/4



      The court found there is ample evidence of domestic
      violence perpetrated by Respondent against Petitioner and
      against one child. CP at 24.

In particular, the court ordered the children to reside with Jennifer at all times and

allowed Neil no visitation until he enrolls in a one-year domestic violence

treatment program. Once enrolled, Neil will be allowed up to 8 hours per week of

professionally supervised time with the children unless and until his treatment

provider determines that he "has made such progress in treatment that

supervision is no longer needed." CP at 27.

       To calculate child support, the trial court found that Neil was voluntarily

unemployed and imputed income to him based on the Median Net Monthly

Income Table.


       Neil appeals.

                                     ANALYSIS

       The law does not distinguish between litigants who elect to proceed pro se

and those who seek assistance of counsel. In re Marriage of Olson, 69 Wn. App.

621, 626, 850 P.2d 527 (1993). Both must comply with applicable procedural

rules, and failure to do so may preclude review. Id. at 626; State v. Marintorres,

93 Wn. App. 442, 452, 969 P.2d 501 (1999). An appellant must provide

"argument in support of the issues presented for review, together with citations to
legal authority and references to relevant parts of the record." RAP 10.3(a)(6).

This court generally will not consider arguments that are unsupported by

pertinent authority, references to the record, or meaningful analysis. Cowiche
Canvon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
No. 71496-1-1/5



Unchallenged findings of fact are verities on appeal. Zunino v. Raiewski, 140 Wn.

App. 215, 220, 165 P.3d 57 (2007) (citing Davis v. Dep't of Labor & Indus., 94

Wn.2d 119, 123, 615 P.2d 1279 (1980)).

       Although Neil lists 14 assignments of error and refers to the record, the

majority of his arguments are based on mischaracterizations of the record, his

own interpretation of various statutes, and his own assessment of the credibility

of various witnesses. The deficiencies in Neil's briefing are substantial obstacles

to our consideration of his appeal. Nevertheless, to the extent possible, we have

addressed the essence of his claims.


       Temporary Orders

       Neil claims several errors with respect to temporary orders entered by

commissioners prior to trial. A temporary order, however, neither resolves issues

relevant to residential time nor ends the litigation and is therefore not appealable

under RAP 2.2. In re Marriage of Greenlaw, 67 Wn. App. 755, 759, 840 P.2d

223 (1992), rev'd on other grounds, 123 Wn.2d 593, 869 P.2d 1024 (1994).

Moreover, temporary orders terminate upon the entry of a final decree. RCW

26.09.060(10)(c). Accordingly, we do not address the temporary orders in this

appeal.

       Parenting Plan

       Parenting plan decisions are within the trial court's broad discretion, and

we will not reverse unless the decision is manifestly unreasonable or based on

untenable grounds or reasons. In re Marriage of Kovacs, 121 Wn.2d 795, 801,

854 P.2d 629 (1993). A primary concern in establishing parenting plans is that
No. 71496-1-1/6



parenting arrangements should serve the best interests of the child. RCW

26.09.002. RCW 26.09.191(1) and (2) specifically authorize the trial court to

place limits on parenting plan provisions where the court finds a history of

domestic violence and an assault of a child. There is nothing in the statute, nor

does Neil cite any other legal authority, which prevents the court from allowing

only supervised visitation on condition of participation in domestic violence

treatment in such a situation. Instead, RCW 26.09.191 (2)(m)(i) expressly

authorizes the court to impose "[supervised contact between the child and the

parent or completion of relevant counseling or treatment."

       Without citation to relevant authority, Neil claims that the trial court

terminated his parental rights and violated his constitutional right to parent by

preventing him from contacting his children. He is incorrect. The trial court

divided "parental roles and responsibilities," but did not "[terminate] the rights of

either parent" as "both parents remain parents and retain substantial rights,

including the right to seek future modification of the parenting plan." In re

Marriage of King, 162 Wn.2d 378, 386, 174 P.3d 659 (2007).

       Neil also claims that the trial court failed to consider or properly evaluate

the best interests of the children by (1) failing to order screenings or

comprehensive assessments under RCW 26.09.191(4); (2) failing to appoint a

guardian ad litem (GAL); and (3) relying on the temporary parenting plan in
violation of RCW 26.09.191(5). As to pretrial screenings, assessments, or

appointment of a GAL, Neil fails to identify any authority requiring a trial court to
employ such measures under the circumstances of this case. Neil did not



                                           6
No. 71496-1-1/7



dispute the existence of his recent criminal conviction for assaulting L.B. Nothing

in the record suggests that the trial court improperly drew presumptions from the

provisions of the temporary parenting plan. To the contrary, our review of the

record reveals that the trial court carefully considered the testimony and other

evidence presented at trial to determine that restrictions on Neil's contact with the

children until he began treatment were in their best interests.

       Next, without citation to relevant authority or cogent explanation, Neil

appears to challenge the admissibility ofthe testimony of Berger and Woody on
various grounds. Although Neil objected at trial to Jennifer's request to present
Woody's testimony telephonically and to admit Woody's evaluation prior to trial
under ER 904 without witness authentication, he did not object at trial to the

admission oftheir testimony as experts or to the admission of their reports and
records as exhibits. Accordingly, Neil has failed to preserve these issues for

review. RAP 2.5(a).

       Finally, without citation to relevant authority or cogent argument, Neil
claims his Fifth Amendment right against self-incrimination was violated when (1)
a prosecutor came into the courtroom during Jennifer's testimony, and (2) the
trial court directed him to respond to Jennifer's question as to whether he had
obtained a domestic violence evaluation since leaving treatment in February

2009. Even if the claimed violation occurred, because Neil fails to identify any

possible connection between either incident and the provisions of the parenting
plan or any other order before us in this appeal, we do not review these claims.
No. 71496-1-1/8



      Child Support Order

      We review a child support order for abuse of discretion. In re Marriage of

Bell, 101 Wn.2d 366, 371-72, 4 P.3d 849 (2000). "This court will not substitute its

own judgment for that of the trial court where the record shows that the trial court

considered all relevant factors and the award is not unreasonable under the

circumstances." In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298

(2002). A court will impute income to a parent for purposes of child support when

the parent is voluntarily unemployed or underemployed. RCW 26.19.071(6).
"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." Id.

       Neil claims the trial court erred in (1) finding him voluntarily unemployed;

(2) failing to impute income based on minimum wage under RCW
26.19.071 (6)(d); and (3) not ordering a deviation from the standard child support
calculation based on supervision expenses. Neil fails to identify any evidence in
the record from which the trial court could have found that he was not voluntarily

unemployed. He admitted that he was unemployed and testified repeatedly that
he intended to return to school. He did not present any medical evidence to

suggest that he was physically unable to do any of the various kinds of work he
had performed during the marriage. As to the amount imputed, Neil did not
present any evidence of a history of minimum wage jobs or any other
qualification for RCW 26.19.071 (6)(d), and Jennifer testified that he made
significantly more than the statutory average while he was working. Neil did not


                                          8
No. 71496-1-1/9



request a deviation from the standard calculation. Neil fails to demonstrate any

abuse of discretion in the child support order.

       Dissolution Property Division

       In a dissolution action, all property, community and separate, is before the

court for distribution. In re Marriage of Stachofskv, 90 Wn. App. 135, 142, 951

P.2d 346 (1998).

       We review an order distributing property for an abuse of discretion and will

only reverse a trial court's decision if there is a manifest abuse of discretion. ]n

re Marriage of Kraft. 119 Wn.2d 438, 450, 832 P.2d 871 (1992). The relevant

factors in determining a just and equitable distribution of property are provided by

statute. They include (1) the nature and extent of community property; (2) the

nature and extent of separate property; (3) the duration of the marriage; and (4)

the economic circumstances of each spouse at the time the division of the

property is to become effective. RCW 26.09.080. The trial court is in the best

position to determine what is "'fair, just and equitable'" under the circumstances.

In re Marriage of Brewer. 137 Wn.2d 756, 769, 976 P.2d 102 (1999) (internal

quotation marks omitted), quoting In re Marriage of Hadlev, 88 Wn.2d 649, 656,

565 P.2d 790 (1977). We will reverse a distribution based on a

mischaracterization of property only when the trial court's reasoning indicates

that the property division was significantly influenced by the characterization, and

it is unclear whether the trial court would have made the same division had the

property been correctly characterized. In re Marriage of Olivares, 69 Wn. App.
No. 71496-1-1/10



324, 330, 848 P.2d 1281 (1993). disapproved on other grounds by In re Estate of

Borghi. 167 Wn.2d 480, 219 P.3d 932 (2009).

       Neil first contends that the trial court abused its discretion by arbitrarily

determining that the value of the house was equal to the mortgage debt. We will

not substitute our judgment for the trial court on a factual dispute over the

valuation of property. Worthington v. Worthington. 73 Wn.2d 759, 762, 440 P.2d

478 (1968). A trial court does not abuse its discretion by assigning values to

property within the scope of the evidence. In re Marriage of Soriano. 31 Wn. App.

432, 435, 643 P.2d 450 (1982).

       Jennifer testified that the parties owed $309,000 on the mortgage at the

time of trial and that the tax assessor's valuation of the property at the time of

separation was $228,200. Neil testified that he believed the house would be
appraised for $320,000 to $340,000. Because the trial court's valuation was

within the limited evidence presented by the parties at trial, Neil fails to

demonstrate abuse of discretion.1

        Neil next claims the trial court's finding that he took $12,000 in cash from

the safe lacked substantial support in the record because only Jennifer testified

as to the existence of the money. We defer to the fact finder on witness

credibility and the persuasiveness ofthe evidence. In re Marriage ofAkon, 160
Wn. App. 48, 57, 248 P.3d 94 (2011). It was within the trial court's discretion to

rely on Jennifer's testimony.


        1After trial, Neil sought reconsideration based in part on a recent appraisal of $358,000
Jennifer obtained for refinancing purposes. But Neil fails to identify or demonstrate any abuse of
discretion in the trial court's order denying reconsideration based on its determination that in the
circumstances here, "it cannot be said that substantial justice was not done." CP at 3-4.


                                                 10
No. 71496-1-1/11



      Neil also contends the trial court failed to properly characterize as his

separate property or his mother's property: (1) the $7,000 Bank of American

account; (2) the Ford truck; (3) his $7,000 workers compensation award; and 4)

certain assets of the "home based business." Brief of Appellant at 41-42. But

because it was undisputed that each of these assets were acquired during the

marriage, Neil had the burden of rebutting the presumption of community

property by clear, cogent, and convincing evidence. In re Marriage of Zahm, 91

Wn. App. 78, 85-86, 955 P.2d 412 (1998). The trial court found that Neil failed to

meet this burden. Neil's references to his own testimony, which the trial court

found to be less credible than Jennifer's testimony, do not establish error.

       Moreover, Neil fails to argue or establish that the trial court's division of

the property was significantly influenced by the characterization of the identified

property. Instead, the record reveals that the trial court's division of the property

was particularly driven by Neil's taking $62,000 of marital property at the time of
separation. In its oral ruling, the trial court described the "roughly" $62,000, less
a mortgage payment, as Neil's "preallocation," and added his $12,109 retirement

for a total of $74,109, less the mortgage payment. VRP (7/31/13) at 664. The

trial court calculated Jennifer's allocation as $73,336, and described their shares

as "roughly equal." VRP (7/31/13) at 664. Neil fails to demonstrate grounds for
reversal or any abuse of discretion.

       We also reject Neil's claim that the order requiring him to pay a private
moving company to obtain his personal property was punitive and a violation of
his constitutional rights. Given the history of domestic violence in this case and



                                          11
No. 71496-1-1/12



the existing protection orders, Neil fails to demonstrate abuse of discretion in the

trial court's attempt to prevent additional conflict between the parties.

       Appearance of Fairness

       For the first time on appeal, Neil claims that the trial judge should have

recused himself because he worked for the domestic violence unit of the

Snohomish County Prosecutor's Office when Neil was arrested in 2008.

       After hearing Jennifer's initial trial testimony about the 2008 arrest, the trial

judge interrupted to "make a record of my own," identified his prior position,

indicated he had no recollection of the case, and invited both parties to testify

about whether they recognized him. VRP (7/9/13) at 78. The trial court

specifically asked whether either party had "any further questions of me, or

motions, or anything for the record?" VRP (7/9/13) at 79. Neil did not object,

saying, "I believe there's no conflict of interest, as far as I'm concerned." VRP

(7/9/13) at 80.

       Because Neil did not object or make a motion for recusal at trial, he failed

to preserve this issue for appeal and we will not address it. RAP 2.5(a);

Henriksen v. Lyons. 33 Wn. App. 123, 128, 652 P.2d 18 (1982).

       Attorney Fees

       Neil challenges $3,000 in attorney fees awarded by a commissioner in a

temporary order filed in February 2013, as well as an additional award of $285.

Neil did not designate the orders awarding attorney fees in his notice of appeal.

Moreover, Neil fails to properly support his arguments with references to the

record and citation to authority. Instead, he baldly asserts that the awards are



                                           12
No. 71496-1-1/13



improper because the court did not find intransigence and did not consider the

financial resources of the parties under RCW 26.09.140. Given Neil's

inadequate briefing and his failure to sufficiently identify or provide the portions of

the record necessary to review this issue, we will not consider it.

       Jennifer requests an award of attorney fees as a sanction for Neil's

frivolous appeal. RAP 18.9(a) authorizes the appellate court, on its own initiative

or on motion of a party, to order a party or counsel who files a frivolous appeal to

pay sanctions, including an award of attorney fees and costs to the opposing

party. Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008) (citing

Rhinehartv. Seattle Times. Inc., 59 Wn. App. 332, 342, 798 P.2d 1155 (1990)).

"An appeal is frivolous if, considering the entire record, the court is convinced

that the appeal presents no debatable issues upon which reasonable minds

might differ and that it is so devoid of merit that there is no possibility of reversal.
And we resolve all doubts to whether an appeal is frivolous in favor of the

appellant." Lutz Tile. Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007)
(internal citations omitted). Because many of Neil's claims depend on his own
mischaracterization of the record or misapplication of various statutes and the

resolution of other claims turn on the trial court's clear and explicit determinations

of credibility and weight of the evidence or lack of evidence, matters which are
not subject to review, we are convinced that the appeal presents no debatable
issues upon which reasonable minds might differ and is devoid of merit. We
award reasonable appellate attorney fees to Jennifer under RAP 18.9 upon her

compliance with RAP 18.1.



                                           13
No. 71496-1-1/14



      Affirmed.




                   J^-Ll/r^c^ CjJ^
WE CONCUR:




                   ^xckei2;




                     14
