In Re: Taylor Katherine Samuel, Resp v. David Thompson Parker, App ( 2018 )

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Respondent, ) UNPUBLISHED OPINION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,
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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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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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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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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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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 Wash. 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 Wash. 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 Wash. 2d 398, 435, 957 P.2d 632(1998).
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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 Wash. 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 Wash. 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 Wash. 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 Wash. 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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develop such a record." Mahler, 135 Wash. 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.
8