Willard Gibson v. Marie Claire Harper Pagh ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Parenting and Support of: NO. 70995-0-1 en
BRITTON LAWRENCE HARPER GIBSON DIVISION ONE
9? —172 Wash. App. 1012, 2012 WL 5992104, review denied.
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177 Wash. 2d 1018 (2013) (Gibson I). In Gibson I, we affirmed the trial court's entry of a
domestic violence protection order (DVPO) in favor of Pagh and a parenting plan final
order. The trial court also awarded Pagh $45,876.48 in attorney fees and costs, the
entire requested amount, based on Gibson's intransigence throughout the proceedings.
Because the trial court made no findings to support the amount of the award or its
conclusion that Gibson's intransigence permeated the entire proceedings, we vacated
the award and remanded for the entry of appropriate findings of fact.
Upon remand to King County Superior Court, the Chief Unified Family Court
Judge assigned the case to the original trial judge, who had since retired, as judge pro
tempore. Each party then submitted a memorandum addressing the issue on remand.
On October 1, 2013, the trial court entered amended findings of fact and
conclusions of law, awarding Pagh $45,876.48 in attorney fees and costs based on
Gibson's intransigence. In support of the award, the court entered the following
findings:
2.10 Other
Respondent failed to attend the court-required parenting seminar,
failed to give the court or petitioner a Financial Declaration or other
required financial disclosures, failed to respond to discovery requests
before the Discovery Cut-off, and failed to meet Case Schedule
Deadlines. Respondent failed to clear up various warrants for his arrest,
contacted petitioner in violation of a DVPO, failed to personally attend any
of the multiple hearings scheduled in this case, substituted counsel
several times, and failed to appear at trial. Respondent failed to timely
disclose trial witnesses, causing petitioner's attorney to file motions in
limine. Despite respondent's failure to meaningfully participate in this
case, respondent requested several continuances. Respondent's wrongful
conduct and intransigence permeated the entire proceedings, made this
case unduly difficult for petitioner, and caused petitioner to unnecessarily
incur attorney fees and costs. Given these circumstances, Petitioner
reasonably incurred $45,074.00 in attorney fees and $802.48 in costs in
this action for 199 hours of legal work required to take this matter through
trial.
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The court finds that the Respondent persistently attempted to
manipulate, harass and intimidate the Petitioner by delay, failure to
personally appear or engage in the parenting plan process, multiple
substitutions of counsel, and cooperate with court scheduling orders or
discovery as part of his continuing pattern of domestic abuse. The impact
of this manipulation was manifest in the Petitioner's demeanor -- anxiety
and fear at multiple hearings.
Because of the Respondent's repeated deliberate intransigence the
court's statutory obligation to arrive at a best interest of the child outcome
independent of the position of the parties was frustrated and delayed.
The necessity of the Petitioner's attorney to monitor and report to
the court on the status of the delays purportedly caused by the
Respondent's criminal matters contribute to Petitioner's attorney fees and
permeated the entire case.
Gibson appeals.
ANALYSIS
As we noted in Gibson I, the trial court has discretion to award attorney fees
when one party's intransigence causes the other party to incur unnecessary legal
expenses. In re Marriage of Bobbitt, 135 Wash. App. 8, 30, 144 P.3d 306 (2006). The
determination of intransigence necessarily rests on the specific facts of each case, but
may involve "foot-dragging," obstruction, the filing of unnecessary or frivolous motions, a
refusal to cooperate with the opposing party, refusal to comply with discovery requests,
and any other conduct that makes the proceeding unduly difficult or costly. In re
Marriage of Greenlee, 65 Wash. App. 703, 708, 829 P.2d 1120 (1992) (quoting Eide v.
Eide, 1 Wash. App. 440, 445, 462 P.2d 562 (1969)): see also In re Marriage of Foley, 84
Wash. App. 839, 846, 930 P.2d 929 (1997); In re Marriage of Crosetto, 82 Wash. App. 545,
564, 918 P.2d 954 (1996).
Generally, the trial court must segregate fees caused by intransigence from
those incurred for other reasons. Crosetto, 82 Wash. App. at 565. But when a party's
misconduct "permeate[s] the entire proceedings, the court need not segregate which
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fees were incurred as a result of intransigence and which were not." In re Marriage of
Burrill, 113 Wash. App. 863, 873, 56 P.3d 993 (2002). We review the award of attorney
fees for an abuse of discretion.
On remand, the trial court entered numerous, cursory findings. We conclude that
the evidence and findings fail to support an attorney fee award based on intransigence.
Failure to Attend Court-Reguired Parenting Seminar
There is no dispute that Gibson failed to attend the parenting seminar required as
part of a Family Court Services (FCS) evaluation. See King County Local Family Law
Rule (KCLFLR) 13 (Parenting Plan and Child Custody Procedures). But FCS closed its
case not only because Gibson failed to attend the seminar but also because both
parties "failed to return the required paperwork." Nothing in the record indicates that the
trial court ever addressed this issue or considered any of the available sanctions for the
failure to comply. See KCLFLR 13(c)(4). Nor has Pagh identified any evidence
explaining the circumstances surrounding the parties' failure to complete the evaluation
or establishing that Gibson's omission resulted in undue delay or unnecessary legal
expenses. Gibson's failure to complete the parenting seminar does not support the
determination of intransigence.
Failure to File Financial Declarations
The trial court found that Gibson failed to submit "a Financial Declaration or other
required financial disclosures." The court's findings do not identify the "required
financial disclosures" that Gibson failed to provide. Under KCLFLR 10, a party is
required to file a financial declaration for any motion or trial "that concerns," among
other things, child support or attorney fees. Pagh contends that Gibson's failure to file a
financial declaration violated KCLFLR 10 because her petition for a residential schedule
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and parenting plan also included a request for child support and because she requested
an award of attorney fees at trial.
But child support was not an issue before the trial court as part of Pagh's
parenting plan action or her petition for a DVPO. The court's judgment establishing the
residential schedule and parenting plan recited that "child support is being pursued
administratively through the Department of Social and Health Services."
Pagh also relies on the fact that she requested an award of attorney fees during
the course of trial on February 1, 2011. That request, however, was based solely on
Gibson's intransigence. When the court awards attorney fees based on intransigence,
"the financial resources of the parties are irrelevant." Burrill, 113 Wash. App. at 873.
Moreover, the trial court here awarded Pagh the entire amount of fees and costs that
she requested without consideration of Gibson's ability to pay. Pagh has made no
showing that Gibson's ability to pay was an issue before the trial court or that his failure
to provide a financial declaration impeded the resolution of any of her claims.
Multiple Reguests for Continuances
The trial court found that Gibson requested "several continuances." The original
case schedule, filed January 26, 2010, set trial for December 27, 2010. In June 2010,
counsel for Gibson requested a 30-day continuance for a hearing on an extension of
Pagh's protection order. The trial court granted the motion and reserved Pagh's request
for lost wages and attorney fees. But nothing in the record indicates that Pagh pursued
that request.
On November 30, 2010, the trial court granted Gibson's motion for a 30-day
continuance of the trial date. The record does not indicate that Pagh opposed a
continuance, and the trial court rescheduled trial for January 31, 2011. When trial
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began on February 1, 2011, Gibson's counsel asked for another continuance, which the
trial court denied.
Consequently, the trial court granted only two brief continuances, resulting in a
total trial delay of about 30 days. The trial court did not condition the continuances on a
payment of terms or suggest that the requests for a continuance were improper or that
they unduly delayed the proceedings.
Failure to Attend Hearings and Trial
With one exception, Gibson did not personally attend pretrial hearings or the trial.
But Gibson was represented by counsel during each of the hearings and at trial.
Although the trial court noted that Gibson's failure to appear could hamper his ability to
sustain his evidentiary burden of proof, the court did not direct Gibson to appear
personally or sanction him for failing to appear. Nor do the court's findings establish
that Gibson's voluntary absence improperly impeded Pagh's ability to advance her
case.
Failure to Clear Up Warrants
The trial court found that Gibson had "failed to clear up various warrants for his
arrest." Gibson acknowledged that he did not appear at pretrial hearings and at trial
primarily because of an ongoing criminal prosecution and outstanding arrest warrants.
The trial court entered no findings regarding the reasons for Gibson's failure "to clear
up" his warrants. Moreover, as indicated, the record does not support the determination
that Gibson's failure to appear personally constituted intransigence. Under the
circumstances, the existence of the outstanding warrants was irrelevant to Pagh's
action.
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Substitution of Counsel
The trial court found that Gibson "substituted counsel several times." On appeal,
Pagh asserts that Gibson's substitution of several attorneys "resulted in various
continuances" that caused delays and that she "incurred fees in opposing at least one of
the continuances." Br. of Resp't at 21. But the record and the trial court's findings fail to
demonstrate that the two relatively brief continuances that were granted—one pretrial
hearing continuance and one trial continuance—involved misconduct or unduly delayed
the proceeding.
Failure to Meet Discovery or Case Schedule Deadlines
The trial court found that Gibson "failed to respond to discovery requests before
the Discovery Cut-off, and failed to meet Case Schedule Deadlines." The original case
schedule provided that the deadline for disclosure of possible primary witnesses was
September 27, 2010. The deadline for disclosure of additional witnesses was October
25, 2010. When the trial court continued the trial date from December 27, 2010, to
January 31, 2011, it extended the discovery cut-off date to January 1, 2011, but did not
otherwise refer to the witness disclosure deadlines, which had already passed.
Pagh submitted her initial set of interrogatories to Gibson on December 1, 2010.
Gibson served Pagh with his primary and rebuttal witness list on December 29, 2010.
Counsel for Gibson conducted a deposition of Pagh on December 31, 2010; Pagh did
not seek to depose Gibson. Pagh received Gibson's answers to her interrogatories on
January 4, 2011, three days after the discovery cut-off date.
On January 28, 2011, three days before trial, Pagh filed a motion in limine asking
the court to strike Gibson's proposed witnesses and award attorney fees. Pagh
maintained that she had been unable to contact most of the witnesses and that
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Gibson's disclosure of the witnesses was untimely. On the first day of trial, counsel for
Pagh acknowledged that the motion was moot because Gibson had decided to call no
witnesses, and the court did not address the motion further.
Pagh's claim that Gibson "fail[ed] to participate in discovery" is clearly without
merit. Br. of Resp't at 19. The record indicates, however, that Gibson's submission of
his witness list and answers to interrogatories arguably failed to comply with the case
schedules. But both parties here engaged in only minimal discovery, with all of it
occurring after the trial court's November 30, 2010 decision continuing the trial date to
January 31, 2011. The trial court made no findings that Gibson's tardiness was the
result of misconduct or a part of any other ongoing obstructionist conduct. Gibson's
delayed submission of a witness list and tardy response to interrogatories provide no
support for the trial court's determination that intransigence permeated the entire
proceeding.
Pagh further asserts that Gibson's answer to interrogatories were "incomplete
and inaccurate." Br. of Resp't at 19. The trial court entered no such findings, and Pagh
fails to identify any relevant portion of the record to support this allegation.
Violation of a Domestic Violence Protection Order
The trial court found that Gibson contacted her "in violation of a DVPO." The
court did not identify the nature or date of the alleged violation. Pagh claims the
violation involved an email contact in January 2010 and multiple contacts through
Gibson's Facebook account. But Pagh makes no showing that the alleged violations,
which Pagh apparently reported to the police, delayed or obstructed her pending action.
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Persistent Attempts to Manipulate, Harass, and Intimidate
The trial court found that Gibson
persistently attempted to manipulate, harass and intimidate the Petitioner
by delay, failure to personally appear or engage in the parenting plan
process, multiple substitutions of counsel, and cooperate with court
scheduling orders or discovery as part of his continuing pattern of
domestic abuse.
The findings further recited that Gibson's intransigence delayed and frustrated the
court's efforts to determine the best interests of the child.
But these findings, which essentially repeated the preceding findings, are
insufficiently specific to permit meaningful appellate review. Nor has Pagh identified
any statement or communication during the course of the proceedings below in which
the trial court characterized Gibson as contemptuous or intransigent or suggested that
any of his actions or omissions were intended to "manipulate, harass and intimidate"
Pagh.
In summary, the findings of fact entered after remand failed to identify sufficient
specific acts of misconduct to constitute intransigence or demonstrate that the alleged
intransigence was so persistent or continuous as to permeate the entire proceedings.
The alleged intransigence here was not analogous to that which courts have found
sufficient to support a comparable award of attorney fees. Cf. Foley, 84 Wn. App at 846
(attorney fees properly awarded for intransigence in child support action where father's
filing of numerous frivolous motions, failure to appear at his own deposition, and refusal
to read correspondence from wife's attorney caused numerous trial delays and caused
wife to incur additional attorney fees); Burrill, 113 Wash. App. at 873 (wife's
"unsubstantiated, false, and exaggerated allegations against [husband] concerning his
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fitness as parent. . ." permeated the entire proceeding and caused unnecessary and
significant attorney fees). We therefore reverse and vacate the trial court's order
awarding attorney fees. We decline to remand this matter yet again for the entry of the
findings necessary to support an award of attorney fees for intransigence.
Because we reverse the attorney fee award, we need not address Gibson's
claims that he never agreed to the appointment of the judge pro tem on remand or that
the trial court's finding that Pagh "reasonably incurred $45,074.00 in attorney fees and
$802.48 in costs in this for 199 hours of legal work . . ." was insufficient to support the
amount of fees awarded for intransigence.
Finally, Gibson has assigned error to the trial court's failure on remand to correct
or clarify certain findings in the original decision that this court in Gibson I characterized
as irrelevant and immaterial. Because those findings are unrelated to the issue of
intransigence, they did not fall within the scope of this court's remand. Gibson has
therefore failed to identify any error. Gibson's attempts to reargue issues decided in
Gibson I are also without merit.
Neither party is awarded attorney fees on appeal.
Reversed and vacated.
WE CONCUR:
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