Shawn Anthony Mesaros, V. Suzanne Karen Pierce

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
DIVISION ONE
SHAWN ANTHONY MESAROS,
No. 82174-1-I (consol. with
Appellant, No. 82470-8-I)
and UNPUBLISHED OPINION
SUZANNE KAREN PIERCE,
Respondent.
DWYER, J. — Shawn Mesaros appeals from the superior court’s orders
awarding Suzanne Pierce attorney fees and costs and requiring Mesaros to pay
his proportionate share of certain uninsured medical expenses and tutoring
expenses for their child. Because Mesaros fails to establish an entitlement to
relief on any of his claims, we affirm.
I
Shawn Mesaros and Suzanne Pierce married in 2001. In 2002, Mesaros
and Pierce had one child. On February 13, 2003, their marriage ended by
decree of dissolution.
Also on February 13, 2003, the superior court1 entered both a parenting
plan and a child support order. The parenting plan provided that the child reside
solely with Pierce. Additionally, the child support order required Mesaros to pay
1In this opinion, we refer to orders entered by court commissioners as orders entered by
the superior court.
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Pierce $607.28 per month in child support. On June 9, 2006, an order was
entered which increased the amount that Mesaros was required to pay Pierce for
child support to $791.36 per month.
On February 11, 2014, Pierce filed a petition to modify the child support
order that was entered on June 9, 2006. On May 30, 2014, the superior court
entered an order modifying the 2006 child support. This order, among other
things, increased the amount that Mesaros was required to pay Pierce each
month in child support,2 required Mesaros to pay his proportionate share of
uninsured medical expenses, and awarded Pierce money judgments for unpaid
back child support, past due unpaid medical support, and child care. Mesaros
subsequently failed to fulfill his obligations under the 2014 child support order.
The parties agree that, on May 25, 2018, Pierce filed a motion for
contempt against Mesaros in which Pierce sought enforcement of the 2014 child
support order.3 Approximately one month later, on June 28, Mesaros filed a
petition to modify the 2014 child support order.
On August 7, 2018, the superior court entered an order denying the
motion for contempt, reasoning that “the Court does not find contempt because
it’s not a clear case of contempt.” Notably, however, this order provided that
2 Specifically, this order required Mesaros to pay $2,159.94 per month in child support until
September 26, 2014, and $2,424.45 per month after that date.
3 The motion for contempt does not appear in the record on appeal. However, in his
opening brief, Mesaros states: “On May 25, 2018, the Mother sought contempt against the Father
for non-payment of the full amount of child support under the default order.” Br. of Appellant at 9.
Similarly, in her response brief, Pierce states that “in May 2018 [she] filed for contempt for
[Mesaros’s] failure to pay child support and for supplemental proceedings to collect his
arrearage.” Br. of Resp’t at 41.
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Pierce “is entitled to a judgment.” The superior court reserved ruling on the
judgment to which Pierce was entitled until a later hearing date.
Subsequently, Mesaros and Pierce entered into an agreement to settle on
certain child support and child care expenses. On March 1, 2019, the superior
court entered a stipulated order in which Mesaros agreed to pay Pierce $110,000
to “fully satisfy all past child support and past-due child care expenses owed by
[Mesaros] to [Pierce] through January 31, 2019.” The order also provided that
Mesaros “shall pay monthly child support for the parties’ child . . . in the amount
of $732.07.” Additionally, the order stated that “[t]he remaining terms of the
Order of Child Support are not agreed to and shall be decided upon in binding
arbitration.”
The issues that were subject to arbitration included whether Mesaros
would pay his proportionate share of certain expenses concerning the child’s
tutoring classes, other educational expenses, extracurricular activities, health
insurance premiums, and uninsured medical expenses. The order provided that
“[t]he parties shall enter a new child support order upon the arbitrator’s decision
memorializing both this agreement and the arbitrator’s ruling.”
On June 19, 2019, the arbitrator reached a decision with regard to the
expenses that were not agreed to under the stipulated order. The arbitrator’s
decision required Mesaros to pay for certain tutoring expenses, other educational
expenses, extracurricular expenses, health insurance premiums, and uninsured
medical expenses for the child.
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On September 13, 2019, Mesaros filed a motion in the superior court in
which he requested, among other things, the entry of a final order of child
support. In this motion, Mesaros challenged the arbitrator’s decision insofar as it
required Mesaros to pay for certain uninsured medical expenses, tutoring
expenses, and other educational expenses for the child.4
On October 4, 2019, the superior court entered an order denying
Mesaros’s motion to enter a final order of child support. In so doing, the superior
court reasoned that Mesaros’s requested modifications of the arbitrator’s
decision “exceeds the agreement of the parties as ordered March 1, 2019 and is
an attempt to obtain a de novo review of the arbitration decision.” The superior
court also explained that, pursuant to the stipulated order entered on March 1,
2019, “[t]he parties agreed to present an agreed order on child support and have
failed to follow their own agreement.” Finally, the superior court concluded that
“[t]he parties have not complied with the March 1, 2019 court ordered agreement”
and that “[t]he foregoing facts leads to the conclusion that this matter should be
tried to a judicial officer.”
On November 8, 2019, Mesaros filed a motion for de novo review of the
arbitration’s decision. The superior court heard Mesaros’s motion on August 24,
2020. During the hearing, Mesaros’s counsel requested the superior court to
enter both a final order of child support and a final order on modification pursuant
to Mesaros’s June 28, 2018 motion to modify the 2014 child support order.
4 Attached to this motion were various personal medical and health records regarding the
child. Between September 2019 and October 2020, the parties filed three motions to seal these
documents. Ultimately, on November 6, 2020, the superior court entered an order sealing these
documents.
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On November 6, 2020, the superior court entered a final child support
order and a final order on Mesaros’s June 28, 2018 motion to modify the 2014
child support order.
In its final child support order, the superior court ordered Mesaros to pay
his proportionate share of tutoring expenses, other educational expenses,
extracurricular expenses, health insurance premiums, and uninsured medical
expenses in accordance with the amounts imposed by the arbitrator.
In its final order on Mesaros’s motion to modify the 2014 child support
order, the superior court modified the amount that Mesaros was required to pay
Pierce each month in child support to reflect the amount imposed by the March 1,
2019 stipulated order. Accordingly, the superior court’s final child support order
provided that Mesaros was required to pay Pierce $732.07 per month for child
support.
Also in its final order on Mesaros’s motion to modify the 2014 child support
order, the superior court determined that Pierce was entitled to an award of
attorney fees and costs. The superior court set forth two bases for this award.
First, the superior court reasoned that Mesaros “has repeatedly made errors in
procedure that amount to intransigence.” Second, the superior court reasoned
that Pierce “is also entitled to attorney fees pursuant to RCW 26.18.160.”
On December 1, 2020, Pierce filed a motion for an award of attorney fees
and costs. On February 16, 2021, the superior court entered an order awarding
Pierce $29,781 in attorney fees and $483.75 in costs against Mesaros. In so
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doing, the superior court reiterated that Pierce “is entitled to attorney’s fees and
costs based on [Mesaros’s] intransigence and based on RCW 26.18.160.”
Mesaros appeals.
II
Mesaros first contends that the superior court erred by awarding Pierce
attorney fees and costs. This is so, Mesaros asserts, because there was no
basis to award attorney fees and costs either pursuant to RCW 26.18.160 or as a
result of intransigence. Because the award of attorney fees and costs was
authorized pursuant to RCW 26.18.160, we disagree.
We apply a two-part review of an award of attorney fees entered by the
superior court: “(1) we review de novo whether there is a legal basis for awarding
attorney fees by statute, under contract, or in equity and (2) we review a
discretionary decision to award or deny attorney fees and the reasonableness of
any attorney fee award for an abuse of discretion.” Gander v. Yeager, 167 Wn.
App. 638, 647, 282 P.3d 1100 (2012). Additionally, “[w]e may sustain the trial
court’s judgment upon any theory established by the pleadings and supported by
the proof.” Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984).
RCW 26.18.160 provides:
In any action to enforce a support or maintenance order under this
chapter, the prevailing party is entitled to a recovery of costs,
including an award for reasonable attorney fees. An obligor may
not be considered a prevailing party under this section unless the
obligee has acted in bad faith in connection with the proceeding in
question.
RCW 26.18.160 does not authorize an award of attorney fees and costs to
the prevailing party in a modification action. In re Marriage of Dortch, 59 Wn.
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No. 82174-1-I/7
App. 773, 781, 801 P.2d 279 (1990); In re Marriage of Oblizalo, 54 Wn. App. 800,
805-06, 776 P.2d 166 (1989); In re Marriage of Belsby, 51 Wn. App. 711, 718-19,
754 P.2d 1269 (1988). However, under this statute, an award of attorney fees
and costs to the prevailing party in an action to enforce a child support order is
mandatory. In re Marriage of Logg, 74 Wn. App. 781, 786, 875 P.2d 647 (1994).
Here, the action before the superior court was an action to enforce a child
support order. Indeed, the parties agree that, on May 25, 2018, Pierce filed a
motion for contempt against Mesaros in which she sought enforcement of the
2014 child support order. Although the superior court did not find that the
circumstances warranted a finding that Mesaros was in contempt, the court
determined that Pierce “is entitled to a judgment.”
Subsequently, the parties entered into an agreement to settle on certain
child support and child care expenses and, on March 1, 2019, the superior court
entered a stipulated order. This order provided that Mesaros was required to pay
Pierce $110,000 to “fully satisfy all past child support and past-due child care
expenses owed by [Mesaros] to [Pierce] through January 31, 2019.” Additionally,
the order reduced the amount that Mesaros was required to pay Pierce for child
support from over $2,000 per month to $732.07 per month.
Notably, this stipulated order also provided that “[t]he remaining terms of
the Order of Child Support are not agreed to and shall be decided upon in
binding arbitration.” The decision that was subsequently reached by the
arbitrator required Mesaros to pay for certain tutoring expenses, other
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No. 82174-1-I/8
educational expenses, extracurricular expenses, health insurance premiums, and
uninsured medical expenses for the child.
After Mesaros sought de novo review of the arbitrator’s decision, the
superior court entered a final child support order under which Mesaros was
required to pay Pierce for tutoring expenses, other educational expenses,
extracurricular expenses, health insurance premiums, and uninsured medical
expenses in accordance with the amounts imposed by the arbitrator. This order
also modified the amount that Mesaros was required to pay Pierce for monthly
child support payments to $732.07 to reflect the amount agreed to pursuant to
the March 1, 2019 stipulated order.
Mesaros contends that RCW 26.18.160 did not authorize an award of
attorney fees and costs because “the action before the Court was the Father’s
Petition to Modify Child Support, filed back on June 28, 2018.”5 However, this
argument fails to recognize that, before Mesaros filed his motion to modify the
child support order, Pierce filed a motion for contempt in which she sought
enforcement of the 2014 child support order. Both because the action before the
superior court began with Pierce’s motion for contempt in which she sought
enforcement of the 2014 child support order and because the superior court, in
ruling on this motion, determined that Pierce was “entitled to a judgment,” the
overall nature of the action was an enforcement action.
Mesaros additionally asserts that the superior court erred by awarding
Pierce attorney fees and costs pursuant to RCW 26.18.160 because he, rather
5 Br. of Appellant at 36.
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No. 82174-1-I/9
than Pierce, prevailed in the superior court. This is so, according to Mesaros,
because he prevailed by reducing his monthly child support payments to
$732.07. However, pursuant to the stipulated order, Mesaros was required to
pay Pierce $110,000 to satisfy past-due child support and child care expenses.
Additionally, the final child support order required Mesaros to pay Pierce for
tutoring expenses, other educational expenses, extracurricular expenses, health
insurance premiums, and uninsured medical expenses in accordance with the
amounts imposed by the arbitrator. Therefore, Pierce substantially prevailed in
the action to enforce Mesaros’s child support obligations.
Accordingly, the superior court did not err by concluding that Pierce was
entitled to an award of attorney fees and costs pursuant to RCW 26.18.160.6
III
Mesaros next contends that the superior court erred by ordering him to
pay his proportionate share of certain uninsured medical expenses for the child.
This is so, according to Mesaros, because these uninsured medical expenses
were not reasonable and necessary. Again, we disagree.
We review a trial court’s decision regarding amounts required for child
support beyond the basic support obligation for abuse of discretion. In re
6 Mesaros’s opening brief provides that “[t]he trial court found two bases for a fee award
to the Mother in its Order on Modification, one of which was RCW 26.18.160.” Br. of Appellant at
35. Because the superior court’s award of attorney fees and costs was authorized pursuant to
RCW 26.18.160, we need not address Mesaros’s arguments with regard to whether this award
was also authorized as a result of Mesaros’s intransigence.
We also note that Mesaros contends that the superior court, in entering its award of
attorney fees and costs, failed to segregate those fees and costs resulting from intransigence
from those imposed pursuant to RCW 26.18.160. Because the entire award of attorney fees and
costs that was imposed by the superior court reasonably encompassed fees and costs that were
incurred by Pierce in the overall action to enforce Mesaros’s child support obligations, Mesaros is
not entitled to appellate relief on this claim.
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No. 82174-1-I/10
Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds or reasons. In re Marriage of Fiorito, 112 Wn. App. 657, 663-
64, 50 P.3d 298 (2002).
Extraordinary health care expenses are an additional amount of child
support to be apportioned between the parents. RCW 26.19.080(2).
Furthermore, trial courts have the discretion to determine the reasonableness
and necessity of extraordinary expenses. RCW 26.19.080(4). “Child support is
designed with the primary goal of preventing a harmful reduction in a child’s
standard of living, in the best interests of children whose parents are divorced.”
Mattson, 95 Wn. App. at 599-600. “In light of this important legislative goal, we
interpret the terms ‘necessary and reasonable expenses’ . . . in a manner that
serves the best interests of children.” Mattson, 95 Wn. App. at 600.
The final child support order required Mesaros to pay his proportionate
share of uninsured medical expenses. With regard to the particular medical
expenses that Mesaros contests on appeal, the order provided that “if the father’s
proportionate share of said costs exceeds $5,000 in a calendar year . . . then the
father has the right to seek review of these costs.”
Mesaros contends that the superior court erred by ordering him to pay for
the contested medical expenses because an insurance provider declined to
cover these expenses and concluded that the health care services associated
with these expenses were “not medically necessary.” However, the record
before the superior court included a letter submitted by the medical doctor who
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No. 82174-1-I/11
provided medical treatment to the child. In this letter, the medical doctor opined
that the child required the health care services associated with the contested
medical expenses in order to complete treatment. Thus, the record contains
ample evidence to support a determination that the treatment associated with the
contested medical expenses served the best interests of the child.
Accordingly, the superior court did not err by requiring Mesaros to pay his
proportionate share of the contested medical expenses.7
IV
Mesaros finally contends that the superior court erred by requiring him to
pay his proportionate share of certain tutoring expenses for the child. Because
the record demonstrates that these expenses were reasonable and necessary,
we again disagree.
The final child support order provided that, “[s]tarting July 1, 2019 through
February 1, 2020, [Mesaros] shall pay $800.52 per month to cover the cost of
Spring Academy incurred during the summer of 2019.”
A report drafted by the child’s psychologist, which was filed in the superior
court, stated that the child has certain medical conditions that hindered the child’s
ability learn in an academic setting. Another report from the same psychologist
7 Mesaros also asserts that the treatment associated with the contested medical
expenses is “contrary to the Father’s religious beliefs.” Br. of Appellant at 48. However, “First
Amendment rights are not absolute and may be limited in the family law context.” In re Marriage
of Olson, 69 Wn. App. 621, 628, 850 P.2d 527 (1993). Furthermore, in determining whether
extraordinary expenses are reasonable and necessary, courts look to whether the expenses
serve the best interests of the child. See Mattson, 95 Wn. App. at 600. As already explained, the
letter from the child’s medical doctor indicates that the contested health care served the best
interests of the child. Therefore, Mesaros fails to establish that the superior court erred by
ordering him to pay his proportionate share of the contested medical expenses.
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No. 82174-1-I/12
provided that the child would benefit from significant modifications to the support
that the child was receiving in school. Furthermore, a declaration of Pierce
stated that, once the child received tutoring through Spring Academy, the child’s
performance in classes in which the child had previously struggled resulted in an
increase in the child’s performance in those classes. Thus, the record supports a
finding that the tutoring expenses were reasonable and necessary.
Accordingly, the superior court did not err by ordering Mesaros to pay his
proportionate share of these tutoring expenses.
V
Pierce requests an award of attorney fees on appeal pursuant to RCW
26.18.160 and RAP 18.1. Because Pierce is a prevailing party, she is entitled to
an award of reasonable attorney fees and costs on appeal under RCW
26.18.160.8 See In re Paternity of M.H., 187 Wn.2d 1, 13, 383 P.3d 1031 (2016)
(holding that, under RCW 26.18.160, the prevailing party is entitled to an award
of attorney fees and costs on appeal).
8 In her response brief, Pierce contends that the superior court erred by not imposing
additional awards of attorney fees against Mesaros pursuant to SCCAR 7.3 and CR 11. To this
end, Pierce requests that we remand the cause to the superior court for the entry of additional
awards of attorney fees pursuant to these authorities. However, because Pierce did not cross-
appeal from the superior court’s award of attorney fees and costs, we deny this request for
affirmative relief. See RAP 2.4(a); Modumetal, Inc. v. Xtalic Corp., 4 Wn. App. 2d 810, 834-35,
425 P.3d 871 (2018) (“[N]otice of cross-review is essential if the respondent ‘seeks affirmative
relief as distinguished from the urging of additional grounds for affirmance.’” (internal quotation
marks omitted) (quoting State v. Sims, 171 Wn.2d 436, 442-43, 256 P.3d 285 (2011))).
Next, Pierce asserts that she is entitled to an award of attorney fees on appeal pursuant
to SCCAR 7.3 and GR 22(g)(4) and as a result of Mesaros’s intransigence in the superior court.
We decline to award Pierce attorney fees on these bases.
Finally, in his reply brief, Mesaros requests that we strike the portions of Pierce’s
response brief in which Pierce seeks additional awards of attorney fees pursuant to SCCAR 7.3
and CR 11. We deny this request.
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Affirmed.
WE CONCUR:
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