Andrew Bertrand v. Rhiannon Bertrand (smith) ( 2014 )

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UNPUBLISHED OPINION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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