Heidi Rachael Silver v. Matthew Benjamin Silver

FILED
AUGUST 24, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re Heidi Rachael Silver )
) No. 34344-8-111
nka Heidi Rachael O'Day, )
)
Appellant, )
)
and ) UNPUBLISHED OPINION
)
Matthew Benjamin Silver, )
)
Respondent. )
FEARING, C.J. -Appellant Heidi O'Day prevailed on a petition to order her
former husband to pay postsecondary education support for the former couple's daughter.
O'Day, nonetheless, challenges procedural aspects of the trial court's ruling in response
to her petition, including the trial court's reallocation of an income tax exemption for the
daughter to her ex-husband, Matthew Silver. We agree with O'Day and vacate the
reallocation. We decline to address many other assignments of error because our
vacation of the reallocation order moots the other assignments or O'Day fails to submit
legal authority supporting her contentions.
No. 34344-8-III
Silver v. Silver
FACTS
This appeal concerns a 2015 modification to a 2002 divorce decree. We begin
with the parties' 2002 divorce decree and 2014 modifications to the decree.
Matthew Silver and Heidi Silver, now Heidi O'Day, divorced in 2002 when their
children Alyssa and Christian were respectively six and three years of age. The children
thereafter primarily resided with their mother. A 2002 order directed Matthew Silver to
pay $387 per month for child support. Support would end when "the child(ren) reach(es)
the age of 18 or as long as the child(ren) remain(s) enrolled in high school, whichever
occurs last." Clerk's Papers (CP) at 5. The order reserved in Heidi, the right to petition
for postsecondary education support, provided she exercised the right before support
terminated. The order of child support also awarded to Heidi the federal income tax
dependency deduction available for Alyssa and to Matthew the deduction available for
Christian.
Heidi Silver thereafter married Jonathan O'Day. She works as an investigator for
the Washington State Human Rights Commission.
On July 31, 2014, at the request of the Spokane County Prosecuting Attorney's
Office, the trial court modified the 2002 child support order because of an increase in
income of Matthew Silver. Alyssa was then seventeen years old and Christian was
fifteen years of age. The 2014 order directed Silver to pay $420.50 per month per child
or a total of $841.00 per month. Silver's obligation to pay child support for Alyssa would
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Silver v. Silver
terminate on June 30, 2015, except that Heidi O'Day could petition for postsecondary
education support before Alyssa graduated from high school. The order granted Silver a
tax deduction for Alyssa and Christian for the year 2014 and for Christian in subsequent
years. The order awarded O'Day the income tax deduction for Alyssa beginning in 2015.
PROCEDURE
.We move to the lengthy and convoluted procedure following Heidi O'Day's
petition for postsecondary education support, which procedure gives rise to this appeal.
On June 3, 2015, Heidi O'Day filed her petition for modification of support and
declaration in support of her petition. The petition requested that Matthew Silver be
ordered to pay postsecondary educational support for Alyssa Silver beyond her
eighteenth birthday and pay Alyssa's uninsured medical expenses. O'Day not only
served the petition and declaration on Matthew Silver, but also a summons for
modification of child support that required him to file a written response and financial
declarations within twenty days or the court might, without further notice, enter a default
judgment against him and award the relief requested in the petition .
Three months later and on September 10, 2015, Matthew Silver filed a response to
Heidi O'Day's petition for modification of child support. The response objected to the
extension of support beyond Alyssa's eighteenth birthday.
On September 18, 2015, Heidi O'Day filed a notice complaining of Matthew
Silver's delay in filing financial disclosures. Silver was seventy-three days late according
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Silver v. Silver
to the summons earlier served on him. Silver received discovery from O'Day on October
9, 2015. O'Day filed a financial declaration on October 14, 2015.
On October 15, 2015, Matthew Silver filed a request for full access to Alyssa's
postsecondary education records and accounts under RCW 26.19 .090( 4 ). Silver
commented that his request might be fulfilled by Heidi O'Day sharing the account name
and password for Alyssa's online school records. O'Day responded by noting that she
and Alyssa would provide school records, but were reluctant to provide unfettered access
to Alyssa's school accounts.
On October 26, 2015, pro tern Court Commissioner Wendy Colton conducted the
postsecondary support modification hearing. At the hearing, prose Heidi O'Day
presented a motion for sanctions for abuse of process. O'Day did not inform Matthew
Silver's counsel of the motion prior to hearing. Silver remarked that he did not receive
timely service of the motion and so either the court should grant a continuance or decline
to consider the motion. O'Day responded that indisputable facts from court pleadings
supported the motion such that the motion required no response. The court commissioner
gave O'Day the choice of completing the postsecondary education support hearing on
October 26 and strike the motion for sanctions or continuing the case for two weeks and
argue the request for postsecondary support and the motion for sanctions then. O'Day
opted to complete the postsecondary support hearing that day.
As she began her argument for postsecondary education support for Alyssa, Heidi
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Silver v. Silver
O'Day complained about Matthew Silver's tardy conveyance of his financial disclosures.
She requested that the trial court strike Silver's financial declaration because he served
his financial disclosures on October 16, 2015, one hundred and one days late and on her
birthday. O'Day protested that Silver's declaration included untrue information, and she
offered to rebut any of the information in the declaration if the commissioner intended to
consider that information. The court commissioner responded: "I'm really interested in
the numbers." Report of Proceedings (RP) at 8.
Matthew Silver, through counsel, protested that any delay in disclosing financial
information resulted from attempts to settle and the need to answer extensive
interrogatories served by Heidi O'Day on Silver. Silver craved an opportunity to remain
involved in Alyssa's life. Nevertheless, Silver requested that the court commissioner
deny O'Day's application for payment of postsecondary education support. He noted
that Alyssa held a part-time job and could pay for living expenses. Silver stated he would
continue to provide voluntary monetary gifts to his daughter.
Near the end of the October 26, 2015, hearing, the pro tern court commissioner
observed that Alyssa's college expenses would total $9,123 per year. The court ordered
Alyssa, Heidi O'Day, and Matthew Silver to equally share the burden of education costs,
with Silver paying O'Day $3,041 through Alyssa's credit union account. The court also
directed Alyssa, who would attend Eastern Washington University, to supply her father
with her attendance records and her academic transcript within one week of the posting of
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Silver v. Silver
the grades. The trial court assigned Matthew Silver's counsel the task of drafting an
order memorializing the commissioner's ruling.
But the court commissioner's ruling did not end the October 26 hearing. Matthew
Silver's counsel asked:
MR. GOBEL: I guess there was one more question. That is of the
dependent child-dependent exemption. I know that the IRS rules are
different nowadays than they were years ago and that the parents can still
claim a child through the postsecondary education years, so if my client's
going to be supporting Alyssa jointly for the next two years, he'd at least
like at least one year to claim her as well.
THE COURT: If Alyssa is not claiming herself, not needing that
exemption for herself, I'll allow each parent to have one year.
RP at 34-3 5. The ruling did not identify which year the respective parents could claim
the income tax deduction. Heidi O'Day did not respond to either Silver's counsel's
request or the court commissioner's ruling. The court commissioner's ruling modified
the July 2014 order that granted O'Day all deductions for Alyssa beginning in 2015.
On October 30, 2015, Heidi O'Day filed a document titled "Notice and
Objection." The pleading assumed that the court commissioner awarded Silver the tax
deduction for Alyssa for the tax year 2015. In the pleading, O'Day argued that the
commissioner failed to give her an opportunity to address the award of the exemption for
Alyssa, and the award of the exemption would create an undue burden. O'Day did not
schedule a hearing for consideration of her objection.
l On November 2, 2015, Matthew Silver filed a motion to strike, motion for fees
l
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Silver v. Silver
and sanctions, and motion for shortened time. Silver moved the court to strike O'Day's
notice and objection and requested attorney fees and sanctions for responding to a
frivolous pleading. Silver argued that the notice and objection was a veiled motion for
reconsideration without sufficient basis for doing so. Silver also filed a proposed
findings of fact, conclusions of law and child support order to reflect the court
commissioner's oral ruling on the petition for postsecondary education support. On
November 3, 2015, the Spokane County Superior Court family law coordinator informed
Heidi O'Day by letter that the court received a proposed order from Matthew Silver and
that she could submit her own proposed documents if she disagreed with Silver. On
November 13, O'Day filed her own proposed order of child support for review by the
court commissioner. She signed the last page of her proposed order.
On November 18, 2015, the pro tern court commissioner signed the findings and
conclusions on petition of child support as presented by Matthew Silver's counsel. The
commissioner also signed Silver's proposed final order of child support. The order
granted the tax exemption deduction for Alyssa to Silver in 2015 and to Heidi O'Day in
2016. O'Day's signature did not appear on the final order on the same page as the
commissioner's signature but on a duplicate of the parties' signature page. Unlike the
rest of the final order, the signature page with O'Day's signature did not list Matthew
Silver's counsel and his contact information in the bottom right comer. On November
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Silver v. Silver
20, 2015, the superior court family law coordinator e-mailed Heidi O'Day a notification
that the commissioner entered its final order on postsecondary support.
On November 24, 2015, Heidi O'Day filed a motion for reconsideration and
motion to strike notice and objection without oral argument. In this pleading, O'Day
averred that she never signed Matthew Silver's proposed order. She only signed her own
proposed order. She identified that the final order contained a signature page for an order
to which she never agreed:
THIS SIGNATURE PAGE IS FROM MY PROPOSED
ORDER, AND CLEARLY IS DIFFERENT THAN TERRY GOBEL'S
ORDER. THIS IS A SEVERE ERROR THAT REQUIRES
CORRECTION, OR IT BECOMES A CRIMINAL ACT,
ACCORDING TO RCW 42.202.040 AND RCW 42.20.050. THIS
ERROR COULD FUNDAMENTALLY DAMAGE MY ABILITY TO
REQUEST A REVISION OR AN APPEAL, AS IT APPEARS
EITHER BY FRAUD OR ERROR THAT I AGREED TO THIS
ORDER, WHEN I DID NOT.
CP at 74 (alterations in original).
In her November 24 pleading, Heidi O'Day requested that the court commissioner
reconsider the decision to permit Alyssa to provide registration records instead of
attendance records, permit Alyssa fourteen calendar days instead of seven to provide
registration and grade information to Silver, and grant O'Day the 2015 income tax
exemption for Alyssa as provided in the July 31, 2014 child support order. O'Day also
moved to strike her October 30 notice and objection pleading, without oral argument.
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Silver v. Silver
On January 22, 2016, Matthew Silver filed a notice of a presentment hearing for
an order denying Heidi O'Day's motions to strike and motion forreconsideration. The
proposed order (1) granted Silver attorney fees and costs due to O'Day's frivolous
pleadings in the amount of $500, (2) denied O'Day's motion for reconsideration, motion
to strike, and all other pending motions by O'Day, (3) granted Silver's motions to deny
reconsideration, strike pleadings, and grant sanctions, and (4) imposed a screening
process requiring O'Day to submit to the superior court's ex parte department all future
petitions, motions, or pleadings seeking relief. On January 29, 2016, Heidi O'Day moved
for an order for change of judge and alleged that she could not receive a fair and impartial
trial before pro tern Court Commissioner Wendy Colton.
On February 3, 2016, Court Commissioner Wendy Colton conducted a
presentment hearing on Matthew Silver's January 22 proposed order. Although Silver
noted this hearing as a presentment hearing, the hearing primarily addressed Heidi
O'Day's motion for reconsideration. Matthew Silver argued that the parties tried the
question of the tax deduction by consent during the October 26, 2015 hearing. O'Day
responded that she never asked for a modification of the award of tax exemptions from
the October 2014 order and Silver never requested, in advance of the October 2015
hearing, a modification of the deduction allocations. The court commissioner asked
Silver if he addressed the tax exemptions in his response to O'Day's petition. Silver
could not find any reference to the tax exemptions in his response. When resolving the
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Silver v. Silver
motion for reconsideration with regard to the tax exemption reallocation, the
commissioner stated:
I do recall that the tax exemption was argued on October 26, 2016
(sic). I recall that Ms. O'Day made an objection to that indicating that she
did not have enough time to provide the Court with information regarding
her position on that. However, what I did was indicate that if Alyssa-
because I was making her partially responsible for her tuition, if she was to
work herself and such that her W-2 earnings would allow her to file her
own tax return, that neither parent would be claiming her as a deduction
and I still want that to occur.
RP at 61. Nevertheless, Heidi O'Day never objected or responded to Matthew Silver's
request during the October 26 hearing.
During the February 3, 2016 hearing, Matthew Silver requested an award of
reasonable attorney fees because of Heidi O'Day's frivolous motions. O'Day responded
that bad faith is not grounds for an award of attorney fees and that her filings were not
frivolous.
On February 3, 2016, at the close of the hearing, the court commissioner granted
Matthew Silver $500 in attorney fees, denied in part and granted in part O'Day's motion
for reconsideration, and affirmed its award of the 2015 income tax deduction to Silver.
The commissioner noted that the motion for reconsideration was not frivolous but "I am
going to stand by the fee award of $500, based on, you know, balancing the equities and a
lack of foundation for some of the motions that Mr. Silver did have to respond to." RP at
68. The partial grant of reconsideration allowed Alyssa fourteen, instead of seven, days
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Silver v. Silver
to provide enrollment information and grades and attendance records. The commissioner
refused to rule on Silver's request that the court require O'Day to submit to a court
screening process before filing further pleadings.
At the end of the February 3 hearing, the court commissioner granted the motion
for reconsideration to the extent Heidi O'Day requested relief from her signature being
attached to the November 18, 2015, order granting postsecondary education support. The
court commissioner observed that O'Day's signature page should not have been attached
to the order. Nevertheless, the court's written order filed on February 3 included no
mention of the signature page.
On February 12, 2016, Heidi O'Day petitioned a superior court judge to revise the
court commissioner's February 3 ruling. In her revision motion, O'Day argued (1) the
court commissioner committed error when awarding $500 in attorney fees because the
commissioner did not consider financial resources and speculated regarding costs
Matthew Silver incurred without requiring bills or documentation of Silver's costs, (2)
the attorney fee award was not a valid sanction under CR 11, (3) the commissioner's
February 3 written order failed to reflect the court's oral bench ruling because it did not
address the tax exemption issue, (4) modification of the October 2014 order regarding tax
I exemptions was procedurally improper because Silver never requested the reallocation of
II exemptions before the October 26, 2015 hearing, (5) the court commissioner failed to
I determine whether Alyssa Silver was a dependent of O'Day for purposes of 2015 federal
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Silver v. Silver
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income taxes, (6) the court commissioner practiced law from the bench by arguing the tax
I awards herself, (7) the trial court did not hold Silver's counsel to the same standards as
I
I O'Day, and (8) the trial court allowed the improperly filed signature page to persist.
O'Day requested costs and compensation for loss of her annual leave, an order of
I "judicial estoppel" that precluded Terry Gobel, counsel for Matthew Silver, from
I continually changing his position, and sanctions against Gobel and Silver. CP at 106.
I On March 3, 2016, prose Heidi O'Day and Terry Gobel, on behalf of Matthew
I Silver, appeared before a Spokane County superior court judge to argue O'Day's motion
I to revise the commissioner's ruling. O'Day presented argument regarding the
I commissioner's requirement that she pay $500 in attorney fees. When O'Day next
discussed revision of the tax deduction reallocation by the court commissioner, the trial
I
court commented that the only ruling on which O'Day sought revision was the ruling
awarding Silver $500 in attorney fees. O'Day responded that the February 3 order did
not address the issue of the misfiled signature page. At the conclusion of her
presentation, O'Day requested that the trial court correct the alleged errors of (1) the
improper imposition of $500 in attorney fees, (2) the failure to hold Terry Gobel
accountable for rules violations, (3) modifying the tax exemptions as allocated in the
2014 order by Commissioner Anderson, and (4) failing to reform the attachment of
O'Day's signature page to the November 18 final order.
During Matthew Silver's counsel's rebuttal argument, the superior court judge
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Silver v. Silver
questioned whether Washington case law supported Silver's contention that intransigence
supported an award of attorney fees. Silver's attorney responded that a panoply of cases
addressed intransigence. The court then asked counsel that, if granted time, could
counsel provide a case to support counsel's position. Despite initially asking Silver's
counsel if he could provide legal authority, the superior court judge affirmed the court
commissioner except as to the imposition of fees. The superior court concluded that
RCW 26.09.140 did not support an award of fees because the financial declarations
evidenced Heidi O'Day's inability to pay.
LAW AND ANALYSIS
On appeal, Heidi O'Day assigns twelve errors to the court commissioner's and
superior court judge's rulings. The assignments of error do not distinguish between court
commissioner and superior court judge rulings, however. The assignments follow. The
trial court erred when granting both children's tax exemptions to Matthew Silver for
2015. The trial court erred when retaining the court order with her signature attached
when the attachment violates RCW 42.20.040 or RCW 42.20.050 and when the trial
court ordered the signature page stricken. The trial court erred when failing to respond to
O'Day's request for reconsideration without any response, and instead conducting an
undocketed presentment hearing requested by Silver's counsel. The trial court erred
when allowing Silver's counsel to draft orders after counsel allegedly committed
misconduct. The trial court, presumably the superior court judge, erred in upholding the
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No. 34344-8-III
Silver v. Silver
decision regarding tax exemptions when O'Day lacked notice and when Silver failed to
present reasons for the reallocation. The trial court erred in imposing higher standards of
conduct on Heidi O'Day than imposed on Matthew Silver's counsel. The trial court erred
when refusing to impose corrective action on Silver's counsel for failing to timely
provide financial records for his client in violation ofRCW 26.09.175(4). Court
Commissioner Wendy Colton erred when refusing to recuse herself. The trial court,
presumably the court commissioner, erred by not honoring the American Rule when
awarding Matthew Silver attorney fees. The superior court judge erred, during the
hearing on the motion for revision, when declaring that the motion only sought a reversal
of the attorney fee award. The trial court erred when affording Matthew Silver's counsel
an opportunity to research whether intransigence constituted grounds for awarding of
attorney fees. Finally, ongoing procedural irregularities violated O'Day's due process
rights. In our analysis, we rearrange the order of some of the assignments of error.
Issue 1: Whether the trial court erred when allowing Matthew Silver to claim a
dependency tax deduction for Alyssa on Silver's 2015 taxes?
Answer 1: Yes.
Heidi O'Day contends the court commissioner erred in awarding Matthew Silver
the tax exemption for Alyssa Silver for 2015 because ( 1) the 2014 order of child support
apportioned that exemption to O'Day, (2) her petition for modification of postsecondary
education did not request modification of the tax exemption apportionment, (3) Silver did
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Silver v. Silver
not request reapportionment of tax exemptions until the end of the hearing regarding
postsecondary education support, and (4) the commissioner granted Silver's request
without allowing O'Day an opportunity to respond. O'Day also questions whether the
court commissioner had an opportunity to review the entire case file before the October
26 support modification hearing. Silver responds that O'Day's argument is meritless
because reapportionment of the exemption award was within the commissioner's
discretion under RCW 26.19.100. Silver also argues that the court commissioner did not
commit error because O'Day failed to object to the reapportionment of the exemption and
her later notice and objection pleading complaining of the deduction reallocation lacked
any legal authority. We address now O'Day's contention that she lacked advanced notice
of the request for the restructuring of the tax deduction for Alyssa.
The parties focus on the court commissioner's ruling without observing that the
superior court judge reviewed the commissioner's ruling. All commissioner rulings are
subject to revision by the superior court. RCW 2.24.050. On revision, the superior court
reviews both the commissioner's findings of fact and conclusions of law de novo based
on the evidence and issues presented to the commissioner. In re Marriage of Moody, 137
Wash. 2d 979, 993, 976 P.2d 1240 (1999). Appellate courts review the superior court's
ruling, not the commissioner's ruling. State v. Ramer, 151 Wash. 2d 106, 113, 86 P.3d 132
(2004).
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Silver v. Silver
Tax exemptions for dependent children are generally considered an element of
child support. In re Marriage ofPeterson, 80 Wn. App. 148,156,906 P.2d 1009 (1995).
Typically under the federal tax code, the custodial parent is entitled to the dependency
exemption. In re Marriage ofPeacock, 54 Wash. App. 12, 14, 771 P.2d 767 (1989).
Nevertheless, RCW 26 .19 .100 provides:
Federal income tax exemptions
The parties may agree which parent is entitled to claim the child or
children as dependents for federal income tax exemptions. The court may
award the exemption or exemptions and order a party to sign the federal
income tax dependency exemption waiver. The court may divide the
exemptions between the parties, alternate the exemptions between the
parties, or both.
(Emphasis added.) Use of the word "may" in the statute denotes that the trial court
possesses discretion when apportioning dependent tax exemptions.
Heidi O'Day assigns error on procedural grounds to the trial court's modification
of the 2014 child support order as to the assignment of the 2015 dependency exemption
for Alyssa because O'Day's petition did not request modification of the exemptions and
thus the subject remained outside the scope of the October 26, 2015 support modification
hearing. Case law disagrees. Once a basis for modification has been established, a court
may modify the original order in any respect, which includes granting the relief requested
by the respondent. In re Marriage of Scanlon & Witrak, 109 Wash. App. 167, 171-72, 34
P.3d 877 (2001). Thus, the court commissioner could modify any child support provision
requested, if properly requested by Matthew Silver.
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Silver v. Silver
We must determine whether Matthew Silver properly requested the
reapportionment of the dependent tax exemption for Alyssa in 2015. Heidi O'Day
objects to Silver requesting the reapportionment of the tax exemption near the end of the
October 26 hearing. She also relatedly questions the court commissioner's grant of the
request without argument and without prior notice to her.
In order for this court to address Heidi O'Day's challenge, we must untangle the
confusing journey of the tax exemption apportionment. On July 31, 2014, another court
commissioner, in the order of child support, awarded O'Day the tax exemption for Alyssa
for 2015 and subsequent years and awarded Matthew Silver the tax exemption for Alyssa
and Christian for 2014 and for Christian in 2015 and subsequent years. The case's next
reference to the exemptions arises at the end of the October 26, 2015, support
modification hearing. After the commissioner granted O'Day's request for
postsecondary support for at least two years, Silver's counsel asked that Silver receive the
dependency exemption for at least one of the years.
Matthew Silver had never earlier requested a modification of the tax exemption
apportionment. The court commissioner, during the October 26 hearing, did not afford
Heidi O'Day an opportunity to respond to Silver's request. The commissioner
announced no justification for the modification of the exemption. Heidi O'Day provided
as much support to Alyssa, and Silver already received the exemption for Christian.
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I Heidi O'Day did not object to the modification of the tax exemptions during the
October 26 hearing. Instead, on October 30, 2016, O'Day filed a document titled "Notice
and Objection," in which she argued that the court commissioner failed to give her an
opportunity to address the change in the award of the 2015 tax exemption for Alyssa.
She also maintained that the grant of the exemption to Matthew Silver would impose an
undue burden on her. Silver moved to strike O'Day's notice and objection, and requested
attorney fees and sanctions for O'Day's purported frivolous pleading. On November 18,
2015, the court commissioner signed and filed the final order reflecting its October 26
ruling. The commissioner apparently concluded that O'Day agreed to the contents of the
order and filed it as an agreed order, despite O'Day never agreeing to its contents.
The tax exemption apportionment next appears in the record during the February
3, 2016, presentment hearing when the court commissioner resolved Heidi O'Day's
motion for reconsideration. On February 3, O'Day argued the commissioner erred in
awarding Matthew Silver the 2015 exemption for Alyssa Silver. Counsel for Matthew
Silver argued that O'Day earlier argued against the exemption modification. Therefore,
according to Silver, the parties addressed the subject by consent as allowed by court
rules. O'Day responded that she never mentioned the tax exemption allocation in her
paperwork and Silver "sprung" his request for a change at the end of the October 26
hearing. RP at 56. The commissioner, without granting O'Day an opportunity to address
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the merits of the reassignment of the exemption, affirmed the October 26 decision to
award Silver the 2015 tax exemption.
With continued dissatisfaction, Heidi O'Day requested revision of the court
commissioner's decision by a superior court judge. In her revision motion, O'Day
argued both procedural error and that the commissioner failed to determine whether
Alyssa was a dependent of O 'Day for purposes of 2015 federal income taxes. She also
sought reversal of the court commissioner's grant of $500 in attorney fees to Matthew
Silver. During the revision hearing, O'Day first addressed the award of fees. Then,
when she began discussing revision of the tax exemption allocation by the commissioner,
the superior court judge interrupted and stated that the award of fees was the only ruling
before him for revision. The superior court judge failed to note that O'Day asserted
multiple challenges, including the tax exemption allocation, in her motion for revision.
The superior court judge did not revise the commissioner's ruling regarding the tax
exemption.
We vacate the 2015 tax exemption reallocation to Matthew Silver because of
many procedural errors. First, Matthew Silver failed to request the tax exemption relief
in any pleading filed before the October 26, 2015, hearing. Second, the court
commissioner allowed Silver, during the October 26 hearing, to request the tax
exemption modification, but did not afford Heidi O'Day an opportunity to respond. At
the same time, the court commissioner did not allow O'Day to seek sanctions against
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No. 34344-8-111
Silver v. Silver
Matthew Silver's attorney because she gave no advance notice. Third, the court
commissioner filed an order modifying the tax exemptions mistakenly believing that
O'Day agreed to the order. Fourth, at the February 3, 2016, hearing, the court
commissioner mistakenly recalled allowing O'Day an opportunity to rebut Silver's
exemption modification request and relied on this mistake when affirming the October 26
decision. Fifth, at the revision hearing, the trial court mistakenly believed the issue of the
tax exemption reapportionment was not subject to review.
CR 15(b) provides, in part,
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they
had been raised in the pleadings.
CR 15(b); Reichelt v. Johns-Manville Corp., 107 Wash. 2d 761, 766, 733. P.2d 530 (1987).
In determining whether the parties impliedly tried an issue, an appellate court will
consider the record as a whole, including whether the issue was mentioned before the
trial and in opening arguments, the evidence on the issue admitted at the trial, and the
legal and factual support for the trial court's conclusions regarding the issue. Federal
Signal Corp. v. Safety Factors, Inc., 125 Wash. 2d 413, 435-36, 886 P.2d 172 (1994);
Dewey v. Tacoma School District No. 10, 95 Wash. App. 18, 26, 974 P.2d 847 (1999).
Amendments under CR l 5(b) cannot be allowed if actual notice of the unpleaded issue is
not given, if there is no adequate opportunity to cure surprise that might result from the
change in the pleadings, or if the issues have not in fact been litigated with the consent of
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Silver v. Silver
the parties. Harding v. Will, 81 Wash. 2d 132, 137, 500 P.2d 91 (1972).
Irregularities pursuant to CR 60(b )( 1) occur when there is a failure to
adhere to some prescribed rule or mode of proceeding, such as when a
procedural matter that is necessary for the orderly conduct of trial is
omitted or done at an unreasonable time or in an improper manner.
Kennewick Irrigation Dist. v. 51 Parcels of Real Prop., 70 Wash. App. 368, 371, 853 P.2d
488 (1993) (quoting Mosbrucker v. Greenfield Implement, Inc., 54 Wash. App. 647, 652,
774 P.2d 1267 (1989)).
We conclude, after analyzing the factors identified in Harding, that the court
commissioner erred in considering and granting Matthew Silver's request for the
modification of the tax exemption apportionment. Silver provided no actual notice of his
unpleaded request before the hearing. Although the record contains vague references that
the parties discussed tax exemptions during settlement negotiations, those negotiations
were confidential, and we have no evidence of their content. Without notice of Silver's
tardy request, Heidi O'Day lacked an opportunity to intelligently gather evidence,
research the law, or prepare an argument. Silver emphasizes that O'Day never objected
at the October 26 hearing, but, without notice of the reallocation request, O'Day lacked
an opportunity to assemble arguments to challenge the request. O'Day never consented
to litigate Silver's request. She never responded to the request at the October 26 hearing.
When requesting the exemption reallocation at the hearing, Matthew Silver presented
21
No. 34344-8-III
Silver v. Silver
only a misguided reason for the change. The court commissioner failed to mention a
reason, let alone an acceptable reason, for the ruling modifying the exemption allocation.
Although we review the superior court's ruling, not the court commissioner's
order, we note that the superior court's ruling stems from the court commissioner's error.
The superior court also mistakenly concluded that Heidi O'Day failed to seek revision of
the tax allocation.
Issue 2: Whether the court commissioner, and, in turn, the superior court judge
erred when granting the 2015 tax exemption allocation modification without a basis in
law or equity, in violation of CR 52?
Answer 2: We do not address this question since we vacate the allocation on other
grounds.
Heidi O'Day contends the court commissioner erred by reallocating the tax
exemption because the commissioner identified no legal or equitable basis for the
reordering. She also argues the commissioner failed to follow CR 52, which rule requires
findings of fact and conclusions of law, when granting the modification. Since we vacate
the reallocation on other grounds, we do not address this assignment of error.
Issue 3: Whether the superior court judge erred during the revision hearing when
declining to review the reallocation of the tax exemption ofAlyssa?
Answer 3: Yes, but on another ground we vacate the reallocation.
Heidi O'Day contends the superior court erred when limiting the scope of the
22
No. 34344-8-111
Silver v. Silver
revision hearing to the issue of attorney fees when her motion for revision alleged other
errors by the court commissioner. Matthew Silver responds that the record rebuffs this
assignment of error. We agree with O'Day, but we have already granted the relief she
requests.
Issue 4: Whether the trial court erred by failing to correct an improperly attached
signature page?
Answer 4: Yes.
Heidi O'Day next contends that the court commissioner and superior court judge
erred by failing to correct an improperly filed signature page. This challenge concerns
the signature page attached to the court commissioner's November 18, 2015, order that
appears to indicate Heidi O'Day agreed to the order. Although Heidi O'Day signed the
attached page, she intended the page to be attached only to her proposed order. She
maintains that the commissioner's oral ruling demonstrated its intent to correct the
misfiling, but the improperly drafted order entered on February 3 failed to affect the
desired correction. Matthew Silver responds by mentioning his December 1, 2015,
pleading asking the trial court to strike O'Day's notice and objection pleading and
requesting sanctions for responding to O'Day's frivolous, impertinent and baseless
pleading. We remand with instructions that the trial court, under CR 60(a), correct the
court record.
23
No. 34344-8-III
Silver v. Silver
Heidi O'Day cites RCW 42.20.040 and .050 in support to her challenge to the ill
attached signature page. Those two statutes criminalize a public officer's knowing
submission of a false or misleading statement in any official report or writing. The
record contains no evidence that the court commissioner knew the signature page falsely
acclaimed O'Day's agreement to the attached order when filed. The commissioner, at the
February 3 hearing, recognized the mistake and expressed an intent to correct the
mistake. The February 3 written order failed to correct the record.
The November 18, 2015 order contained the clerical error of a misattached
signature. Clerical errors may be remedied under CR 60(a), which provides:
Clerical Mistakes. Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders. Such
mistakes may be so corrected before review is accepted by an appellate
court, and thereafter may be corrected pursuant to RAP 7 .2( e ).
The rule addresses clerical errors only; a court cannot use CR 60(a) to correct judicial
error. In re Marriage of Getz, 57 Wash. App. 602, 604, 789 P.2d 331 (1990). The test for
distinguishing between 'judicial" and "clerical" error is whether, based on the record, the
judgment embodies the trial court's intention. Shaw v. City ofDes Moines, 109 Wash. App.
896, 901, 37 P.3d 1255 (2002) (quoting In re Marriage of Getz, 57 Wash. App. at 604).
The attachment of Heidi O'Day's signature to the written order conflicted with the trial
court's intent. We remand to the trial court to correct the error.
24
No. 34344-8-III
Silver v. Silver
Issue 5: Whether the superior court judge entered a ruling on Heidi O 'Day's
motion for reconsideration, and only considered her motion during an undocketed
presentment hearing?
Answer 5: No.
Heidi O'Day contends the court commissioner violated her due process rights by
failing to respond to her motion for reconsideration. Matthew Silver responds that the
commissioner held discretion to decide the motion for reconsideration at the presentment
hearing. We decline to address this contention because we otherwise grant the relief
requested by O'Day in her motion for reconsideration.
Issue 6: Whether the court commissioner erred in continuing to defer the drafting
of court orders to Matthew Silver's counsel after Heidi O 'Day advised the court of
misconduct by counsel?
Answer 6: No.
Heidi O'Day contends the court commissioner erred by allowing counsel for
Matthew Silver to draft and propose written orders after O'Day notified the court of
counsel's alleged misconduct. Silver responds that O'Day never raised the issue of
irregularities with the drafted orders and that the court never found counsel committed
misconduct. We reject this assignment of error because O'Day submits no legal authority
supporting her argument. This court does not review errors alleged but not argued,
briefed, or supported with citation to authority. RAP 10.3; Valente v. Bailey, 74 Wash. 2d
25
No. 34344-8-III
Silver v. Silver
857,858,447 P.2d 589 (1968).
We note that court commissioners and superior court judges routinely rely on
counsel to draft findings of fact, conclusions of law, orders, and judgments. The superior
court and court commissioner review the pleadings before signing, such that the court
may detect any misconduct of counsel.
Issue 7: Whether the trial court erred in holding Heidi O 'Day to higher standards
than those to which it held Matthew Silver's counsel?
Answer 7: We decline to address this assignment of error because O 'Day
presented no legal authority supporting the argument.
Heidi O'Day contends the trial court erred by permitting Matthew Silver's counsel
to orally request reapportionment of the tax exemptions but refused to allow O'Day to
orally request sanctions against counsel for late disclosure of Silver's financial records.
Silver responds that the commissioner held counsel to the same standard as O'Day and
even granted O'Day's request for postsecondary education support. We do not address
this issue because O'Day fails to provide any legal support for her argument. This court
does not review errors alleged but not argued, briefed, or supported with citation to
authority. RAP 10.3; Valente v. Bailey, 74 Wash. 2d at 858 (1968). Appellate courts are
precluded from considering such alleged errors. Hollis v. Garwall, Inc., 137 Wash. 2d 683,
689 n.4, 974 P.2d 836 (1999).
Issue 8: Whether the trial court erred in failing to take corrective action against
26
No. 34344-8-III
Silver v. Silver
Matthew Silver's counsel/or violating RCW 26.09.175(4), which requires the disclosure
of the client's financial data within twenty days of receipt of the summons?
Answer 8: We refuse to address this assignment because the assignment is moot
for lack ofprejudice.
Heidi O'Day contends the court commissioner and superior court erred by
allowing Matthew Silver's counsel to violate RCW 26.09.175(4). O'Day claims that
counsel violated the statute by the tardy disclosure of Silver's financial records and
contests the commissioner's and superior court's refusal to take corrective action despite
her constant requests to do so.
The purpose of submittal of the financial data is to allow the parties and the court
to conduct a support calculation when awarding support. Matthew Silver eventually,
although significantly untimely, provided his financial information. The court
commissioner then awarded Heidi O'Day postsecondary education support. O'Day does
not claim error in the amount of the support award. Thus, she shows no prejudice as a
result of the untimely disclosure.
Generally, this court will not consider a moot issue unless it involves matters of
continuing and substantial public interest. Bavand v. One West Bank, FSB, 176 Wash. App.
475, 510, 309 P.3d 636 (2013). A case is moot when it involves only abstract
propositions or questions, the substantial questions in the trial court no longer exist, or a
court can no longer provide effective relief. Spokane Research & Defense Fund v. City
27
No. 34344-8-III
Silver v. Silver
ofSpokane, 155 Wash. 2d 89, 99, 117 P.3d 1117 (2005); State v. Slattum, 173 Wash. App.
640, 647, 295 P.3d 788 (2013). Any favorable ruling for Heidi O'Day on this assignment
of error would not afford O'Day any benefit. Therefore, we decline review.
Issue 9: Whether Commissioner Wendy Colton erred in failing to recuse herself?
Answer 9: We decline to address this assignment of error because Heidi O 'Day
failed to preserve the assignment when she sought revision of the court commissioner's
rulings.
Heidi O'Day contends that the trial court erred in failing to consider her motion
for change of judge, filed January 29, 2016. Matthew Silver responds that O'Day never
raised this issue to the superior court judge, the right to excuse a judicial officer for
prejudice does not apply to commissioners, and a judicial officer is presumed to perform
without prejudice. We agree with Silver that O'Day failed to address this contention
when bringing her motion for revision, and, therefore, O'Day did not preserve the issue.
All commissioner rulings are subject to revision by the superior court. RCW
2.24.050. We review the superior court's ruling, not the commissioner's. Faciszewski v.
Brown, 187 Wash. 2d 308, 313 n.2, 386 P.3d 711 (2016); In re Dependency of Ca.R., 191
Wash. App. 601, 607, 365 P.3d 186 (2015); State v. Ramer, 151 Wash. 2d at 113 (2004). In
her motion for revision, Heidi O'Day did not request recusal on her action on her motion
for change of judge. Nor did she raise either subject during the revision hearing. As the
superior court made no decision regarding Commissioner Cotton's failure to recuse
28
No. 34344-8-111
Silver v. Silver
herself, this court cannot review this issue.
Issue 10: Whether the court commissioner erred by not honoring the American
Rule when it awarded Matthew Silver $500 in attorney fees?
Answer 10: We decline to address this assignment of error because the superior
court judge reversed the award offees.
Heidi O'Day contends the court commissioner erred, when awarding attorney fees
to Matthew Silver, by not honoring the American Rule regarding attorney fees. The
American Rule declares that each party pay his or her own attorney fees. O'Day
complains that the award imposes a chilling effect on pro se litigants. Matthew Silver
responds that this assignment of error is moot because the superior court reversed the
award of attorney fees. We agree with Silver.
Generally, this court will not consider a moot issue unless it involves matters of
continuing and substantial public interest. Bavand v. One West Bank, FSB, 176 Wash. App.
at 510 (2013 ). A case is moot when it involves only abstract propositions or questions,
the substantial questions in the trial court no longer exist, or a court can no longer provide
effective relief. Spokane Research & Defense Fund v. City ofSpokane, 155 Wash. 2d at 99
(2005); State v. Slattum, 173 Wash. App. at 647 (2013). The superior court reversed the
imposition of fees, on the basis that RCW 26.09.140 does not support an award of fees
because financial declarations evidenced Heidi O'Day's inability to pay. Based on this
reversal, this court can grant no relief to O'Day.
29
I
i
I
I
I
II No. 34344-8-III
Silver v. Silver
I
!
Issue 11: Whether the trial court erred duringrevision by offering Matthew
I
I Silver's counsel an opportunity to conduct additional research outside of the hearing and
later present additional information to supplement his position?
l
Answer 11: We decline to address this assignment of error because it is moot.
I
I Heidi O'Day contends the superior court judge committed error when offering
Matthew Silver's counsel an opportunity to conduct legal research whether intransigence
is a basis for awarding attorney fees. Matthew Silver responds that the superior court
judge revoked the opportunity to conduct further research and his counsel never
supplemented the record with additional legal briefing. We question the factual accuracy
of O'Day's argument, but decline to reach the argument because the assignment of error
is moot. The superior court judge vacated the award of attorney fees.
Issue 12: Whether the court commissioner erred by permitting ongoing
irregularities and other misconduct that collectively violated Heidi O 'Day's right to due
process?
Answer 12: We decline to address this assignment of error because Heidi O 'Day
failed to preserve the assignment during the revision hearing.
Heidi O'Day contends the court commissioner permitted procedural irregularities
and misconduct that violated her right to due process. To support this argument, O'Day
reviews every step of the child support modification litigation and identifies every
perceived irregularity and act of misconduct. The only law she references is the
30
No. 34344-8-III
Silver v. Silver
Fourteenth Amendment to the United States Constitution and Marchantv. Pennsylvania
Railroad Co., 153 U.S. 380, 14 S. Ct. 894, 38 L. Ed. 751 (1894). Matthew Silver
responds that O'Day provides no facts to support her vague and cumulative allegation of
a due process violation.
We decline to address the assignment of error because Heidi O'Day never raised
this claim during the revision hearing before the superior court judge. O'Day also does
not identify any relief requested as a result of any due process violation, and we grant her
most, if not all, requested relief anyway.
Issue 13: Whether this court should sanction Matthew Silver's counsel?
Answer 13: We decline to address this argument, since Heidi O 'Day supplies no
authority supporting her request.
Heidi O'Day requests this court sanction Matthew Silver's counsel as the court
deems fit. She provides no analysis or legal authority in support of this prayer. As
already indicated, this court does not review contentions not supported by authority.
Issue 14: Whether this court should award Matthew Silver reasonable attorney
fees on appeal?
Answer 14: No.
Matthew Silver requests this court award him attorney fees on appeal based on
Heidi O'Day's intransigence. He argues that O'Day's entire case was without merit and
RAP 18.1 provides this court with the authority and discretion to award attorney fees.
31
No. 34344-8-III
Silver v. Silver
Silver does not raise any other statutory, contractual, or equitable basis for an award of
attorney fees on appeal. We reject Silver's request because, although many of O'Day's
assignments of error were poorly grounded in law or fact, she substantially prevails on
appeal. She prevailed before the trial court on her principal request of postsecondary
education support.
CONCLUSION
We vacate the trial court's reassignment to Matthew Silver of the tax exemption
for Alyssa for the year 2015. We remand with instructions to correct the clerical error
regarding the attachment of Heidi O'Day's signature to the November 18, 2015 order.
Each party shall pay his or her own costs and attorney fees on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, CJ.
WE CONCUR:
J)dbw.
doway, ~,ff·
J.
j
32