In Re The Parentage Of: Wjm, Daphne Chua v. Tyler J. Mcgrue ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Parentage of W.J.M., No. 79177-0-I
Child, DIVISION ONE
v. UNPUBLISHED OPINION
DAPHNE CHUA,
Respondent,
TYLER MCGRUE,
Appellant.
LEACH, J. — Tyler McGrue appeals the court’s June 3, 2018 order awarding
attorney fees, costs, and transportation expenses, and the court’s order clarifying
the June 3, 2018 order. He contends the record does not support the court’s
findings that he had the ability to pay attorney fees and costs, that he was
responsible for Daphne Spence’s transportation expenses that she might have
otherwise avoided, and that he acted in contempt of the trial court’s order of April
20, 2018. He also contends the court abused its discretion in determining the
attorney fees were reasonable and allowing certain litigation costs to be included
in the award. Because we agree that the court’s findings are insufficient and not
supported by substantial evidence, and that the court abused its discretion, we
reverse the orders awarding attorney fees, costs, and transportation expenses and
remand for further proceedings.
Citations and pincites are based on the Westlaw online version of the cited material.
No. 79177-0-I/2
FACTS
Tyler McGrue and Daphne Spence1 have one child together, W.J.M. The
couple never married, and in June 2016, they entered into a parenting plan. Under
the terms of the plan, Spence moved to Monterey, California and W.J.M. lived with
her most of the time. The child stayed with McGrue for two weeks, every three
months up to two three-night periods a month, in California and for holidays every
other year. The visitation plan was scheduled to change when W.J.M. began
attending school in the autumn of 2018. McGrue would have W.J.M. for spring
break, mid-winter break, alternating winter breaks, and four weeks during the
summer increasing to six weeks when W.J.M. entered third grade. McGrue and
Spence had joint responsibility for major decisions such as education and non-
emergency health care. In the event of disagreements, the plan required the
parties to engage in mediation before raising the issue in court.
In the autumn of 2017, Spence learned that her husband, who serves in the
military, would be transferred and permanently stationed in Okinawa, Japan in the
spring or summer of 2018, although the written orders had not been issued. Before
Spence and W.J.M. could move to Japan, Spence needed court orders authorizing
the relocation, modification of the parenting plan, and a passport for W.J.M. In
October 2017, Spence asked McGrue to sign a consent form2 showing he agreed
1
Daphne Chua is now Daphne Spence. We use her current surname in
this opinion.
2
Federal regulations require both parents to execute a passport application
on behalf of a minor under age 16 with some exceptions. 22 C.F.R. § 51.28(a)(2).
One parent may obtain a passport for a child by submitting a notarized statement
of consent from the other parent. This can be done with a DS-3053 form though
use of the form is not required. 22 C.F.R. § 51.28(a)(3)(i).
2
No. 79177-0-I/3
to the issuance of a passport for W.J.M. McGrue wanted to reach an agreement
with Spence on modifications to travel and visitation in the parenting plan, and said
he would sign both documents, an amended parenting plan, and the consent form
at the same time. Spence was unwilling at that time to discuss and agree on
changes to the parenting plan that would not take effect until sometime the
following year. The parties reached an impasse.
In January 2018, Spence’s husband received official orders transferring him
to Okinawa on May 15, 2018. She and her husband planned to move at the end
of April. McGrue and Spence apparently discussed some modifications to the
parenting plan in early January but did not reach an agreement on everything. On
February 15, 2018, Spence filed a Notice of Intent to Move with Children and a
proposed parenting plan.3 Spence also filed an ex parte motion, set for February
16, requesting an order requiring McGrue to sign a DS-3053 consent form
(passport motion). The court denied the motion explaining that Spence should
“note a motion before the trial judge under LCR 7.”4
Nearly a month later, on March 14, 2018, the case had not been assigned
to a trial judge, so Spence filed a motion to modify the parenting plan,5 a motion
3
Spence did not mail copies of the relocation notice and the proposed
parenting plan to McGrue and his counsel until February 28, 2018. McGrue stated
he received them on March 2, 2018. He filed an objection on March 30.
4
McGrue requested an award for attorney fees, which the court reserved
for the trial judge.
5
Spence later explained that she filed the petition to modify the parenting
plan to “trigger a case schedule and have a trial judge assigned.” She did not
intend to pursue the petition to modify, but she did not dismiss the petition until
shortly before the hearing on April 20, 2018 and well after McGrue had filed a
response.
3
No. 79177-0-I/4
for adequate cause, and a motion for a temporary order authorizing relocation.
The case was assigned to a judge the same day. The following day, at Spence’s
request, the court scheduled the passport motion for a hearing on April 6, but it did
so without waiting for a response from McGrue’s attorney who was not available
from April 6th to April 16th. Despite McGrue’s submission of a notice of
unavailability, and his request to reschedule, Spence did not change the hearing
date. On March 30, 2018, McGrue filed a motion to continue. He also filed
responses to Spence’s motions and submitted his own proposed parenting plan.
Instead of responding to McGrue’s motion to continue, Spence filed a notice
of disqualification of the judge. After the case was reassigned, Spence filed a new
passport motion and noted it for hearing on April 20, 2018. She also asked McGrue
to agree to mediation as soon as possible with a mediator of McGrue’s choice.
McGrue did not respond.
At the hearing on April 20, 2018, the court ordered the parties to
immediately engage a mediator to help them resolve their disputes over changes
to the parenting plan and to return to court on April 26, 2018. The parties attended
mediation on April 23, 2018 and reached an agreement. The court also granted
Spence’s passport motion ordering McGrue to provide the signed consent form no
later than noon on April 23, 2018. McGrue complied.6 Nonetheless, when Spence
traveled to San Francisco to get the passport on April 25, the State Department
6
At the follow-up hearing on April 26, 2018, Spence claimed that McGrue
had sent only one original signed and notarized release when in fact she needed
two such originals. But, Spence’s email forwarding McGrue the consent form
included just one form, and it specifically referred to only “the original” to which he
needed to return.
4
No. 79177-0-I/5
advised her McGrue had placed a “hold” that prevented the Department from
issuing a passport.7 At the April 26 hearing, McGrue said he had forgotten about
placing the hold months earlier. He then lifted it so Spence was able to obtain the
passport for W.J.M. that day.8 As a result of McGrue’s failure to remember and
remove the hold, Spence and her family made a second trip to San Francisco just
days before the move to Japan incurring significant expenses obtaining the
passport.
At the hearing on April 26, Spence orally moved for an order directing
McGrue to reimburse her for the cost of the second trip and for any “expedited
overnight fees” she incurred to have the passport delivered to her home in
Monterey. The court did not address Spence’s request that day. Spence filed a
motion in May requesting an award of “attorneys’ fees and travel expenses for
[McGrue’s] failure to comply” with the court’s order of April 20, 2018. In her
declaration, however, Spence stated she was requesting $5,000 in attorney fees
“for having to litigate this matter at all.” McGrue objected and requested the court
award him fees and costs he incurred in responding to Spence’s initial ex parte
7
Though the record is not completely clear, it is likely the “hold” to which
the parties referred to was placed through the Children’s Passport Issuance Alert
Program (CPIAP), which authorizes the State Department to contact a parent who
requests to verify whether he or she has consented to issuance of a passport for
the named child. A parent may also lodge an objection to the issuance of a
passport through CPIAP, although the State Department advises parents that
under the circumstances prescribed in 22 C.F.R. § 51.28, the State Department
may issue a passport despite the objection. 22 C.F.R. § 51.28(c).
8
The court directed the parties to return to court, in the afternoon on
April 26, to report whether the hold on the passport had been lifted. McGrue
appeared for the hearing but Spence did not.
5
No. 79177-0-I/6
passport motion and her motion for fees and travel expenses. On June 3, 2018,
the court issued an order granting Spence’s motion:
“The attorney’s fees are reasonable; the respondent has the ability
to pay. The transportation cost of $718.73 are also awarded, but for
Mr. McGrue's contempt of this court's April 20, 2018 order. The costs
would not have been incurred for the futile act, travel because as a
result of the respondent’s failure to release the State Department
hold.”
The court held a status conference on July 30, 2018. McGrue appeared
through counsel, but Spence did not appear. McGrue advised the court that a
notice of settlement would be filed. In early September, the parties filed a
stipulation and order of dismissal, an agreed final order on the objection to
relocation, and an agreed amended parenting plan.
In October, Spence moved for clarification of the court’s award of fees and
expenses, noting that while the order indicated the motion for attorney fees was
granted, it did not state specifically the amount of fees awarded.9 McGrue
responded that the order did not state a sum certain in attorney fees and that it
was unclear whether the court intended to order him to pay fees for his failure to
remove the hold on the passport or for the entire case. He also objected to the
court’s findings that he had the ability to pay and that he had acted in “contempt”
of the court’s order. On October 30, 2018, the court issued an order clarifying its
June 3 order as follows: “[McGrue] shall pay attorney’s fees to [Spence] in the
amount of $5,000. It is further ordered, adjuged [sic] and decreed Attorney’s fees
of $5,000.00 is awarded.” McGrue appeals.
9
Spence attested that McGrue had paid only the $718.73 in transportation
expenses, which was an amount specified in the court’s order.
6
No. 79177-0-I/7
ANALYSIS
McGrue contends the court erred in finding that he had the ability to pay
attorney fees, costs, and transportation expenses, that he was responsible for
Spence incurring transportation expenses that she may have otherwise avoided,
and that he acted in contempt of the Court’s order of April 20, 2018. He further
contends the court abused its discretion in determining the attorney fees requested
were reasonable and the included litigation costs in the award.
Generally, a court will not award attorney fees and costs of litigation unless
authorized by contract, statute, or recognized ground of equity.10 We apply a two
part test in reviewing orders involving attorney fees: (1) we review de novo whether
there is a legal basis for awarding attorney fees and (2) we review a discretionary
decision to award or deny fees and the reasonableness of any attorney fee award
for an abuse of discretion.11 We review the trial court’s findings of fact to determine
if they are supported by substantial evidence, and if so, whether the findings
support the conclusions of law.12
In a proceeding brought under chapter RCW 26.09, attorney fees may be
awarded on a statutory basis pursuant to RCW 26.09.140 or on the equitable basis
that that additional fees were caused by one party’s intransigence. 13 The court’s
order awarding fees in this matter is ambiguous in that it suggests the fee award
10
Durland v. San Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014).
11
Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).
12
Wixom v. Wixom, 190 Wn. App. 719, 724, 360 P.3d 960 (2015).
13
Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969).
7
No. 79177-0-I/8
could be based on either the statute or a finding of intransigence. 14 Because it is
unclear whether the court relied on a statutory or an equitable ground, we address
both.
A. Attorney Fees Awarded Based on Statute
The trial court has discretion to award reasonable attorney fees under
RCW 26.09.140 after considering the financial resources of both parties. 15 The
party challenging the award bears the burden of proving that the trial court
exercised its discretion in a way that was clearly untenable or manifestly
unreasonable.16 A court’s decision is manifestly unreasonable if it is outside the
range of acceptable choices given the facts and the controlling legal standard; it is
based on untenable grounds if the factual findings are unsupported by the record;
and the decision is based on untenable reasons if it applies an incorrect standard
or the facts fail to meet the requirements of the correct standard.17
14
The court’s finding that McGrue “has the ability to pay” suggests that the
court may have based its award on RCW 26.09.140, which requires the court to
consider the financial resources of the parties. But, the court’s finding that “but for
Mr. McGrue's contempt of this court's April 20, 2018 order, Spence would not have
incurred additional expenses” suggests that the court may have based it’s finding
on intransigence.
15
In re Marriage of Ayyad, 110 Wn. App. 462, 473, 38 P.3d 1033 (2002).
16
In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71, 75-6
(1994) (citing Abel v. Abel, 47 Wn.2d 816, 819, 289 P.2d 724 (1955).
17
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
8
No. 79177-0-I/9
“To withstand appeal, a fee award must be accompanied by findings of fact
and conclusions of law to establish a record adequate for review.” 18 In addition,
the trial court must state on the record the method it used to calculate the award.19
In considering the financial resources of both parties, the court must
consider both the financial need of the spouse seeking fees and the ability of the
other spouse to pay.20 The absence of findings as to either need or ability to pay
requires reversal.21 When calculating the fee award, the court should consider:
(1) the factual and legal questions involved; (2) the time necessary for preparation
and presentation of the case; and (3) the amount and character of the property
involved.22
McGrue challenges the court’s award of fees and costs based on
RCW 26.09.140. He contends the court erred in finding that he had the ability to
pay fees and costs and that the court abused its discretion by determining the
attorney fees Spence requested were reasonable and by including certain costs in
the award. We agree.
The court made a single factual finding to support that balancing of
McGrue’s ability to pay against Spence’s financial need. It found McGrue had the
ability to pay. This finding is unsupported by any evidence in the record. Neither
party submitted financial statements or declarations concerning their financial
18
In re Marriage of Laidlaw, 2 Wn. App. 2d 381, 392, 409 P.3d 1184(2018) (quoting Eagle Point Condo. Owners Ass’n v. Coy, 102 Wn. App. 697,
715, 9 P.3d 898 (2000).
19
Marriage of Knight, 75 Wn. App. at 730.
20
In re Marriage of Nelson, 62 Wn. App. 515, 521, 814 P.2d 1208 (1991).
21
In re Marriage of Steadman, 63 Wn. App. 523, 529, 821 P.2d 59 (1991).
22
Abel, 47 Wn.2d at 819.
9
No. 79177-0-I/10
condition. Neither party testified at a hearing regarding their financial need or
ability to pay. If the trial court based its award on the authority granted by
RCW 26.09.140, the record does not permit any meaningful review and must be
reversed.
Nor is the court’s conclusion that $5,000 is a reasonable amount of attorney
fees for this relocation matter supported by the record. Spence entered into a flat
rate fee agreement of $5,000 plus costs. The billing record submitted to the trial
court reflects hours worked by counsel and staff except for attorney Jason
Benjamin. The billing statement appears to document charges for time worked by
two lawyers and three staff members, as well as charges for costs, such as filing
fees and copying expenses. Spence’s counsel, in an affidavit accompanying the
billing statement, stated that if Spence had been billed on an hourly basis, she
would have incurred fees through May 15, 2018 of $6,336.50.
The billing statement includes items that may not be recovered in a fee
award. Costs are narrowly defined in RCW 4.84.010 to include expenses for filing,
witness fees, and service of process.23 Photocopying is not authorized as a cost
that may be awarded to an opposing party.24
In addition to cost items that should be excluded from the fee award, fees
for non-lawyer staff are not recoverable unless the services meet the criteria of
23
Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 66, 738 P.2d 665 (1987).
24
In re Marriage of Van Camp, 82 Wn. App. 339, 343, 918 P.2d 509(1996); Austin v. U.S. Bank of Washington, 73 Wn. App. 293, 310, 869 P.2d 404,
414 (1994).
10
No. 79177-0-I/11
Absher Const. Co. v. Kent School Dist. No. 415.25 Nor may fees be awarded for
time spent on duplicative work, unsuccessful claims, or unnecessary or
unproductive activities.26 The billing statement includes a charge for 1.3 hours of
attorney time for “travel to and from court house; drop off affidavit of prejudice,” at
a rate of $310 per hour. Fees for work which does not require legal training, such
as delivering documents, are not recoverable.
B. Attorney Fees Awarded Based on Intransigence
A trial court may also consider whether additional legal fees were caused
by one party’s intransigence and award attorney’s fees on that basis. 27 “When
intransigence is established, the financial resources of the spouse seeking the
award are irrelevant.”28 Intransigence includes “foot-dragging” and obstruction,
filing repeated unnecessary motions, and conduct that makes the trial unduly
25
79 Wn. App. 841, 845, 917 P.2d 1086 (1995). The Court adopted the
following criteria for determining whether the services of non-lawyer personnel may
be recoverable as part of an attorney fee award: “(1) the services performed by the
non-lawyer personnel must be legal in nature; (2) the performance of these
services must be supervised by an attorney; (3) the qualifications of the person
performing the services must be specified in the request for fees in sufficient detail
to demonstrate that the person is qualified by virtue of education, training, or work
experience to perform substantive legal work; (4) the nature of the services
performed must be specified in the request for fees in order to allow the reviewing
court to determine that the services performed were legal rather than clerical; (5)
as with attorney time, the amount of time expended must be set forth and must be
reasonable; and (6) the amount charged must reflect reasonable community
standards for charges by that category of personnel.”
26
Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665, 682
(1987); Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208, 212
(1987); Van Camp, 82 Wn. App. at 342; Absher Constr., 79 Wn. App. at 847.
27
In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120(1992).
28
In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989).
11
No. 79177-0-I/12
difficult and costly.29 Where a party’s intransigence permeates the entire
proceedings, the court need not segregate fees that were incurred as a result of
intransigence from those that were not. 30 Otherwise, only the fees incurred as a
result of the other party’s intransigence should be awarded.31
Although the court did not make a specific finding that McGrue was
intransigent, it did find that he acted in “contempt” of the court’s April 20, 2018
order. Spence’s travel expenses for the second trip to San Francisco “would not
have been incurred” if McGrue had released the hold preventing the State
Department from issuing a passport to W.J.M. McGrue contends the court erred
in making these findings.32
McGrue contends that the court failed to consider that Spence failed to
request two signed and notarized copies of the passport consent form for which
she said she needed to obtain the passport for W.J.M. in San Francisco. The
record supports McGrue’s contention that he was asked to return just one signed
and notarized consent form. There is no evidence that he was asked to print and
sign two of the forms. However, Spence clarified in her declaration of May 24,
2018 that she did not need the second copy of the consent form to obtain the tourist
passport in San Francisco. She needed it to obtain the government passport for
29
Greenlee, 65 Wn. App. at 708.
30
Burrill v. Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002).
31
In re Marriage of Crosetto, 82 Wn. App. 545, 565, 918 P.2d 954 (1996).
32
We reject McGrue’s argument that the trial court found him “sua sponte”
in contempt without proper notice and a hearing. We do not read the trial court’s
order as finding McGrue in contempt as the term is used in RCW 7.21.010 or RCW
26.09.160. The court did not cite to any legal authority for such a finding, nor did
Spence argue for such a finding. Instead, the court used the term “contempt” in
the ordinary sense of being disobedient, disrespectful, or scornful.
12
No. 79177-0-I/13
which she was able to get elsewhere. Thus, Spence’s failure to request two signed
and notarized consent forms following the April 20 hearing is not a reason why she
had to make a second trip to San Francisco.
McGrue also argues that the court failed to consider Spence could have
defeated the hold he had put in place by presenting the court’s order authorizing
her to obtain a passport for W.J.M. McGrue relies on 22 C.F.R. § 51.28(a)(3)(E),
which provides that a passport application may be executed for a minor by only
one parent if the parent provides a court order “specifically authorizing the applying
parent or legal guardian to obtain a passport for the minor, regardless of custodial
arrangements.” We disagree with McGrue’s assertion that under this regulation a
court order will suffice to obtain a passport regardless of any hold the other parent
has placed. The court’s order did not authorize Spence to obtain a passport for
W.J.M. “regardless of custodial arrangements”. It gave her permission to obtain a
passport for W.J.M. and it required McGrue to sign the appropriate consent form.
To the extent the court concluded, but for the hold McGrue forgot he had placed,
Spence could have obtained the passport on her first trip to San Francisco. The
court did not abuse its discretion.
Spence contends that McGrue acted in “bad faith” and was intransigent “at
every stage of the proceedings,” justifying an award for all of her attorney fees and
costs. We decline to affirm on this basis both because the court did not enter
findings and conclusions to support such an award, and because there is not
substantial evidence in the record to support such a finding. Spence contends, for
example, that this matter would not have been litigated at all but for McGrue’s
13
No. 79177-0-I/14
intransigence. In October 2017, however, McGrue wanted to reach an agreement
with Spence on changes to the parenting plan before signing the consent form for
the passport. It was Spence who refused to work out an agreement on how they
would change the visitation and travel arrangements and not McGrue.
Further, it was Spence, not McGrue who chose to litigate the matter rather
than submit the disagreement to mediation as required by the parenting plan.
Spence claims she tried to pursue mediation, but the only evidence is an email
message in early April 2018 requesting that McGrue agree to a mediation date.
Spence contends that McGrue’s opposition to consenting to the passport
was egregious because he did not object to her relocating with W.J.M. to Japan.
We disagree. Relocation involves more than moving to the new location. The
statute contemplates that the parent who is not relocating may object to proposed
changes in the residential aspects of the parenting plan.33 The adjustments to the
visitation schedule and travel arrangements were precisely what was at issue for
McGrue in this case. The trial court recognized that Spence’s insistence that
McGrue consent to the passport was “putting the cart before the horse until the
court” determined whether temporary relocation was appropriate.
In a similar vein, Spence asserts that because the parenting plan the parties
ultimately agreed to provide McGrue with essentially the same amount of
residential time with W.J.M. as the parenting plan in place before Spence
relocated, the litigation was for nothing. This reasoning ignores the parenting plan
amendments Spence proposed when she filed the notice of relocation, which
33
RCW 26.09.260(6).
14
No. 79177-0-I/15
would have made several significant changes that were disadvantageous to
McGrue.34 The parenting plan changes what the parties ultimately agreed to in
mediation however McGrue avoided these disadvantageous changes.35 Contrary
to Spence’s assertion, McGrue sought to protect legitimate interests.
Spence contends that McGrue is responsible for the pace of the
proceedings and delays that threatened to interfere with Spence’s relocation
arrangements. Other than the issue with the hold McGrue had placed on the
passport, the record does not support Spence’s contention. The initial delay in the
proceedings occurred when Spence noted the passport motion for an ex parte
hearing. The judge denied the motion and explained that Spence should note the
motion for a hearing before the judge assigned to hear the relocation motion.
Spence has repeatedly asserted that RCW 26.09.480 authorized filing the
passport motion ex parte. Spence misapprehends the statute. It authorizes the
person relocating to obtain an order ex parte allowing relocation during the period
in which the other party may file an objection to the motion to relocate.36 The only
34
Among the changes Spence proposed were: (a) permitting McGrue two
weekend visits with W.J.M. in Japan per month provided that he pay 100 percent
of the travel expenses; (b) requiring that McGrue accompany W.J.M. from both
Spence’s place of residence and returning to Spence’s place of residence for all
of W.J.M.’s visits with McGrue in the United States; (c) granting Spence sole
decision-making authority for major health care and education issues; and (d)
allowing Spence to relocate during her husband’s active duty military service, likely
every two years, without further court approval, without any changes to the
parenting plan, and without advance notice to McGrue.
35
The agreed parenting plan preserves joint decision-making, equally
divides the task of accompanying W.J.M. on trips to and from the United States,
and omits the language allowing Spence to relocate without court approval. It also
provides McGrue the opportunity to have time with W.J.M. of up to 12 consecutive
nights, twice a year, and in Japan at his own expense.
36
RCW 26.09.480(2).
15
No. 79177-0-I/16
order that may be obtained ex parte under the statute is an order authorizing
temporary relocation.37 The statute does not authorize a motion related to a
passport to be heard ex parte.
Spence also contends she was forced to file a petition to modify the
parenting plan and a motion for adequate cause in mid-March because McGrue
“refused” to file an objection to the motion to relocate. First, there is no evidence
in the record that McGrue refused to file an objection.38 Second, LFLR 5(e)(6)
permits filing a motion to authorize temporary relocation before the chief family law
judge if a party does not have an assigned judge. Spence was therefore not forced
to file a petition to modify the parenting plan. In addition, Spence advised the court
on April 20, 2018 that she had dismissed the petition to modify because “it’s really
not necessary. We were just trying to expedite the process of getting a trial judge
…” She did not dismiss either the petition or the motion for adequate cause until
shortly before the hearing date and well after McGrue had filed a response.
McGrue was thus forced to incur fees responding to a petition that Spence never
intended to pursue.
Some of Spence’s other actions may have increased the delays. After the
matter was assigned to a judge in mid-March, the court set a hearing on a date
when McGrue’s counsel was not available. Spence’s counsel declined to agree to
37
LFLR 5(b).
38
McGrue filed a timely objection to the motion to relocate. Spence did not
mail the notice of intent to relocate, and the proposed parenting plan, to McGrue’s
attorney until February 28, 2018, which was almost two weeks after she presented
the passport motion ex parte. McGrue received the notice on March 2, 2018 and
filed an objection on March 30. Thus, he did not refuse to respond, and he was
not intransigent about responding.
16
No. 79177-0-I/17
a different hearing date, but then moved to disqualify the judge after McGrue
moved for a continuance. It is certainly possible that the parties could have
obtained an earlier hearing date had Spence filed the disqualification notice in mid-
March instead of waiting until McGrue filed a motion.
As noted above, “to withstand appeal, a fee award must be accompanied
by findings of fact and conclusions of law to establish a record adequate for
review.” Here, the court’s findings and conclusions do not provide such a record.
To the extent McGrue was intransigent, it did not permeate the entire proceedings.
Only the fees that were incurred as a result of McGrue’s intransigence, if any, may
be awarded, and only after consideration of the appropriate factors, the
reasonableness of the fees, and the accuracy of the parties’ contentions.
C. Attorney Fees on Appeal
McGrue seeks an award of attorney fees on appeal. RAP 18.1 allows this
court to award attorney fees on appeal if applicable law provides for an award of
fees. Under RCW 26.09.140, on appeal, “the appellate court may, in its discretion,
order a party to pay for the cost to the other party of maintaining the appeal and
attorneys’ fees in addition to statutory costs.” Although McGrue is the substantially
prevailing party, he has not filed a financial declaration establishing his need. So,
we deny his request.
17
No. 79177-0-I/18
CONCLUSION
We reverse the award of attorney fees and costs. We award McGrue
statutory costs on appeal. We reverse and remand for further proceedings
consistent with this opinion.
WE CONCUR:
18