Melissa Montgomery (fka Nadir), Resp. v. Wanis Nadir, App.

2GUN0Y H AH CJ'U1
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of No. 70804-0-
MELISSA MONTGOMERY, formerly
known as MELISSA NADIR,
Respondent,
and
UNPUBLISHED OPINION
WANIS NADIR,
FILED: November 17, 2014
Appellant.
Verellen, A.C.J. — Wanis Nadir appeals the modification of orders providing
for the care and support of his child with Melissa Montgomery. He also challenges
the trial court's award of attorney fees to Montgomery. Although the incomplete
record and poor briefing present significant obstacles to our review, we affirm
because Nadir fails to demonstrate that the trial court abused its discretion in the
particular circumstances of this case.
FACTS
Nadir and Montgomery married in May 2002 and their son, N.N., was born on
September 16, 2003. Montgomery filed a petition for dissolution in April 2007. In
August 2008, the trial court entered orders dissolving the marriage and providing for
N.N.'s care and support. In June 2012, Montgomery petitioned for modification of the
parenting plan.
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At the modification trial in July 2013, Montgomery testified that her relationship
with Nadir involved domestic abuse and described two incidents of physical assault.
She acknowledged that the 2008 parenting plan stated that domestic violence and
abuse were never an issue in the relationship, but testified that Nadir coerced her into
accepting that language as a condition of any agreement. Montgomery also testified
that Nadir was very controlling and often told her that he "would abandon" N.N. if she
accused him of domestic violence and that Nadir "had shown [her] what that would
look like ... by not seeing [N.N.] for over three months."1 Montgomery testified that
she obtained a protection order against Nadir in 2009.
Montgomery also presented the testimony of Jennifer Bercot, a Family Court
Services social worker who completed a court-ordered domestic violence assessment
for the protection order proceedings in January 2012. In her report, Bercot opined that
Nadir had "demonstrated behaviors of domestic violence."2 In addition to considering
incidents of physical force in 2007 and a later "pattern of harassment" including
"excessive text messages," Bercot also noted, "It appears that the father has used
more subtle means to manipulate and harass the mother through the court system and
also through the parenting plan."3 Bercot recommended a full protection order for
Montgomery and N.N., domestic violence treatment for Nadir, professionally
supervised visitation for Nadir until he completed nine months of domestic violence
treatment and group therapy, and a parenting plan designating Montgomery as the
sole decision-maker.
1 Report of Proceedings (RP) (July 2, 2013) at 27.
2 Exhibit 28 at 11.
3 Id.
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Nadir testified that during their relationship, Montgomery threatened to call the
police with a false report of domestic violence. He also testified that she physically
attacked him by lunging at him in the car and injured herself when she fell on the
pavement as he backed away. Although he admitted to once threatening not to see
N.N. because of the conflicts with Montgomery, Nadir did not recall how long he had
gone without seeing N.N. or how he had responded to several of Montgomery's
e-mails requesting his participation and support for N.N.'s extracurricular activities.
Throughout his testimony, Nadir characterized Montgomery as aggressive and
unreasonable and claimed that Montgomery caused the conflict in the relationship
and initiated the vast majority of the contentious litigation between the parties. He
presented several witnesses, including the owner of a supervised visitation agency, a
professional visitation supervisor, his former co-workers, his brother, his fiancee, the
court-appointed guardian ad litem (GAL), Montgomery's former co-worker, and his
domestic violence treatment provider.
In closing, Montgomery requested a standard calculation of child support, a
continuation of the existing residential schedule, a restriction on Nadir's decision
making authority based on a finding of domestic violence, and an award of attorney
fees and costs based on Nadir's intransigence as well as Montgomery's need and
Nadir's ability to pay.
Nadir requested joint decision-making with the assistance of an intermediary
as recommended by the GAL, vacation of the protection order based on a finding that
Montgomery's allegations of domestic violence were false, reallocation of the GAL
fees, a finding that Nadir had satisfied previously ordered domestic violence
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treatment and therapy, a child support order with a deviation from the standard
calculation for his son from a previous relationship, and a parenting plan including
restrictions on Montgomery's parenting based on abusive use of conflict.
On July 23, 2013, the trial court entered an order on modification, a child
support order, and a parenting plan largely consistent with Montgomery's requests.
The court entered a judgment against Nadir for attorney fees and costs on August 9,
2013. Nadir appeals.
STANDARD OF REVIEW
"This court reviews trial court decisions dealing with the welfare of children for
abuse of discretion."4 A trial court abuses its discretion when its decision is
"'manifestly unreasonable or based upon untenable grounds or reasons.'"5
We will reverse a trial court's factual findings only if they are unsupported by
substantial evidence in the record.6 We review de novo whether the trial court's
conclusions of law flow from its findings.7 Unchallenged findings are verities on
appeal.8
4 In re Marriage of Homer. 151 Wn.2d 884, 893, 93 P.3d 124 (2004).
5 Id. (quoting State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)).
6 In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).
"Substantial evidence exists if the record contains evidence of sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise." Bering
v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986).
7Watson v. Dep't of Labor & Indus.. 133 Wn. App. 903, 909, 138 P.3d 177(2006).
8 Cowiche Canyon Conservatory v. Boslev. 118 Wn.2d 801, 808, 828 P.2d
549(1992).
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ANALYSIS
As a preliminary matter, we note that Nadir bears the burden of complying with
the Rules of Appellate Procedure (RAP) and perfecting the record on appeal so that
this court has before it all the evidence relevant to deciding the issues presented.9
Failure to provide an adequate record precludes appellate review.10
RAP 9 describes the proper procedure for perfecting the record, including both
the designation and filing of clerk's papers.11 Here, Nadir designated only exhibits.12
Although RAP 9 specifically allows any party to supplement the designation of clerk's
papers, Montgomery chose not to do so.13 Instead, both parties attached certain
documents as appendices to their briefs.14 The inadequacy of the record before us
could justify dismissal.15
9 RAP 9.6(a); In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266(1990).
10 See Olmsted v. Mulder, 72 Wn. App. 169, 183, 863 P.2d 1355 (1993) (court
refused to reach the merits of appellant's arguments because he failed to provide a
sufficient trial record).
11 RAP 9.1(a), (c), 9.6.9.7(a).
12 Nadir has provided a verbatim report of the proceedings that appears to be
a complete transcript of the trial proceedings on July 2-3, 9-10, and 15. However,
without the superior court clerk's minutes or any minute entry, we cannot discern
whether the transcript is actually complete. Similarly, Nadir has designated and filed
many exhibits comprising hundreds of pages, the majority of which appear to have
been marked for identification only. Because the exhibit list filed by the superior court
clerk has not been provided, we cannot consult the official record to verify the date
each exhibit was offered and admitted or refused, except by examining the trial
transcript.
13 RAP 9.6(a).
14 Neither party filed a motion to strike any appendix.
15 See City of Seattle v. Torkar, 25 Wn. App. 476, 478, 610 P.2d 379 (1980)
(dismissal of pro se appellant's appeal for failure to file clerk's papers and report of
proceedings).
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Also, despite his multiple claims based on an asserted lack of written findings,
Nadir fails to assign error to any of the written findings the trial actually entered.16
And Nadir fails to support the majority of his claims with relevant authority, citations to
the record, and cogent argument.17 However, to the extent possible, we have
considered the merits of Nadir's claims.18
Trial Witnesses
Nadir first claims that the trial court abused its discretion by excluding the
testimony of Dr. Jody McVittie and by denying his request to call Montgomery as a
witness. "The admission or refusal of evidence lies largely within the sound
discretion of the trial court and will only be reversed upon a showing of abuse of that
discretion.19
Nadir called Dr. McVittie, who identified herself as a licensed family physician
and a parenting coach and testified that Nadir contacted her "to talk about improving
his parenting skills in December of 2011."20 After Dr. McVittie admitted that she had
never testified in court as a parenting expert and had no license or certification as a
parenting evaluator or counselor, the court asked Nadir to make an offer of proof as
16 Under RAP 10.3(g), "A separate assignment of error for each finding of fact
a party contends was improperly made must be included with reference to the finding
by number."
17 See RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809 (declining to
consider arguments unsupported by reference to the record or citation to authority).
18 Rhinevault v. Rhinevault, 91 Wn. App. 688, 693, 959 P.2d 687 (1998)
("[Although the designated record and briefing in this case teeter on a tightrope of
inadequacy, with some difficulty we have gleaned an outline of the facts sufficient to
resolve the issues before us.").
19 Hume v. American Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994).
20 RP (July 3, 2013) at 244.
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to the relevance of her expected testimony. Nadir claimed Dr. McVittie would testify
that she coached Nadir and his fiancee over the course of a series of telephone
conversations about parenting and co-parenting. According to Nadir, her testimony
would demonstrate his "willingness to engage in whatever he needed to ... co-
parent" and "figur[e] out how to deal better with Ms. Montgomery."21 The trial court
excluded Dr. McVittie's testimony as irrelevant and/or hearsay, stating that Nadir was
"the best person to testify to those points."22
Here, without citation to relevant authority, Nadir claims the trial court failed to
consider N.N.'s best interests and "unfairly and on no rational legal grounds"
excluded Dr. McVittie's testimony relevant to his parenting skills and his willingness
to learn to cooperate with Montgomery.23 We disagree. Any statements made
during the telephone conversations between Dr. McVittie and Nadir would be
properly excluded as hearsay.24 And Dr. McVittie specifically stated that she was not
providing medical treatment to Nadir.25 She was not qualified or asked to provide an
expert evaluation or opinion of Nadir's parenting and had no basis to judge Nadir's
actions with regard to his parenting or his cooperation with Montgomery beyond what
he told her over the phone. A general description of the topics discussed or Nadir's
21 RP (July 9, 2013) at 418.
22 Id at 419.
23 Appellant's Br. at 6.
24 Hearsay is a "statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." ER 801(c). Hearsay is not admissible unless allowed by court rule or
statute. ER802.
25 See ER 803(4) (providing that certain statements made for purposes of
medical diagnosis or treatment are not excluded by the hearsay rule).
7
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enthusiasm to participate in the conversations seems at best marginally relevant.
Nadir fails to show any abuse of discretion in the court's ruling with regard to
Dr. McVittie's proposed testimony.
Nadir next challenges the trial court's denial of his request to call Montgomery
in his case-in-chief. When asked at trial to make an offer of proof, Nadir indicated he
wanted to question Montgomery about (1) the contents of her petition for dissolution;
(2) her "upbringing"; (3) N.N.'s surgeries; (4) the contents of her trial brief; and
(5) incidents that occurred during mediation. Observing that such issues could have
been raised during his extensive cross-examination of Montgomery or that had been
previously excluded, the trial court denied Nadir's request to call Montgomery.
Nadir fails to provide relevant authority or cogent argument to demonstrate
any abuse of discretion in this ruling. The trial court carefully and repeatedly
explained to Nadir's counsel at trial that any reference to the mediation was
inadmissible under ER 408 and had previously been stricken from the trial briefs and
excluded from evidence. On appeal, Nadir fails to acknowledge or properly assign
error to that ruling. And the trial court did not limit Nadir's cross-examination.26 As
below, Nadir fails to articulate any relevant evidence he could not have introduced in
cross-examination and would have introduced in a direct examination of Montgomery,
but for the trial court's ruling. Nadir identifies only impeachment issues, such as her
"changing stories about the alleged domestic violence," that were proper cross-
26 In fact, when call for recess on the first day of trial after the "redirect
examination" of Montgomery, the trial court specifically told Nadir's attorney, "If you
have recross, you may start tomorrow with it." RP (July 2, 2013) at 170.
No. 70804-0-1/9
examination topics.27 Contrary to Nadir's apparent belief, his attorney's repeated
statements on the record that she intended to call Montgomery as a witness in
Nadir's case to testify to undefined topics did not bind the trial court to allow such an
examination. The trial court did not abuse its discretion.
Travel Restrictions
Relying on Katare v. Katare.28 Nadir claims the trial court abused its discretion
by imposing travel restrictions without any findings of fact or supporting evidence. In
particular, the parenting plan states, "The father is not allowed to take the child out of
the [sjtate of Washington without the mother's written consent."29
"RCW 26.09.191(1) and (2) are mandatory provisions that require the trial
court to restrict a parent's conduct or involvement with the child, while
RCW 26.09.191(3) is a discretionary provision that permits a trial court to restrict a
parent's actions."30 Unlike the other provisions under RCW 26.09.191(3),
"RCW 26.09.191 (3)(g) is a catchall provision."31 In Katare, the trial court entered
findings explicitly stating that RCW 26.09.191(1), (2), and (3) did not apply, but then
imposed travel restrictions on the father based on findings under RCW
26.09.191 (3)(g).32 This court remanded for the trial court to address the ambiguity by
clarifying the legal basis for imposing the restriction and making necessary findings
27 Appellant's Br. at 9.
28 125 Wn. App. 813, 816, 105 P.3d 44 (2004).
29 Parenting Plan at ^y 3.10.
30 Katare, 125 Wn. App. at 825.
31 In re Marriage of Chandola, 180 Wn.2d 632, 640, 327 P.3d 644 (2014).
32 See Katare. 125 Wn. App. at 829-31.
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as appropriate.33 In later proceedings in Katare. our Supreme Court held that
imposition of restrictions under RCW 29.09.191 (3)(g) requires findings of "more than
the normal. . . hardships which predictably result from a dissolution of marriage."34
Here, the trial court marked the box on the parenting plan for a finding of "[a]
history of acts of domestic violence as defined in RCW 26.50.010(1) or sexual
assault which causes grievous bodily harm or the fear of such harm."35 This finding
requires the imposition of restrictions under RCW 26.09.191 (1)(c) and (2)(a)(iii). The
court also marked the box stating, "The abusive use of conflict by the parent which
creates the danger of serious damage to the child's psychological development."36
This finding authorizes restrictions under RCW 26.09.191 (3)(e). Nadir did not
acknowledge or assign error to these findings in his opening brief, arguing instead
that there was no evidence produced at trial regarding his travel with N.N.37 Nadir
fails to identify any authority holding that the finding of abusive use of conflict is
insufficient to support imposition, under RCW 26.09.191 (3)(e), of the particular
restriction at issue in the circumstances of this case.
33 jd at 831.
34 Katare v. Katare. 175 Wn.2d 23, 36, 283 P.3d 546 (2012).
35 Parenting Plan U2.1.
36 Parenting Plan 1j 2.2. Although the mark is very faint on the copy of the
parenting plan attached to Nadir's opening brief, it appears to be an "X" and is
consistent with the spacing of the check boxes throughout the document and with the
trial court's finding in the modification order providing that "Respondent's abusive use
of conflict interfering with decisions in the child's best interests." Order Re Modification
at U 2.3.
37 In his reply brief, Nadir argues that the general finding of domestic violence
does not justify travel restrictions.
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No. 70804-0-1/11
And our review of the record reveals ample evidence to support the trial
court's finding that Nadir's abusive use of conflict had an adverse effect on N.N.'s
best interests. Montgomery and her husband, who also testified at trial, described
incidents where Nadir yelled at and argued with her in front of N.N., upsetting N.N. to
the point of tears. Montgomery described Nadir's threat, which he admitted at trial, to
abandon N.N., as well as his threatening and harassing e-mails and text messages.
Montgomery also described Nadir's repeated resistance to cooperate with her to
address N.N.'s dental and medical issues and his participation in sports and
recreational activities. As to travel, Nadir admitted that he had refused to allow N.N.
to attend Montgomery's wedding and instead took N.N. on a Father's Day weekend
vacation trip. Nadir's fiancee testified that she would not reveal the details of her
upcoming wedding with Nadir, claiming that she feared Montgomery would prevent
N.N. from attending out of spite.
Nadir refers only to evidence in the record consistent with his view of the facts.
Butthe trial court's orders are consistent with Montgomery's testimony and evidence
and inconsistent with Nadir's testimony and evidence. We defer to the trial court with
regard to weight of the evidence or credibility of witnesses.38 Under circumstances
here, Nadir fails to demonstrate abuse of discretion in the trial court's imposition of
the restriction requiring Montgomery's written consent for any travel outside the state.
Attorney Fee Bond
Nadir next challenges the trial court's order requiring him to post a bond before
initiating court action to resolve future disputes with Montgomery. In the parenting
38
In re Marriage of Greene. 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
11
No. 70804-0-1/12
plan, the trial court identified court action as the only method of dispute resolution
and ordered:
Based on a finding that the respondent has engaged in abusive
use of litigation, court action initiated by the respondent shall be subject
to the following conditions:
1. Respondent shall provide a copy of this parenting plan to the
court with any new filing to apprise the reviewing court of this finding;
and
2. Respondent shall post a bond for payment of petitioner's
attorney fees and sanctions, to be paid ifthe reviewing court finds the
action to be without merit.[39]
Nadir does not challenge the trial court's authority to impose the conditions or
the purpose or scope of the conditions. Instead, relying on portions of the trial
transcript consistent with his view, Nadir claims that the trial court failed to make
sufficient findings and had no factual basis to require him to post a bond. We
disagree.
We review limitations on a party's access to the court for abuse of discretion.40
Montgomery testified at trial that Nadir caused her significant unnecessary
attorney fees, stress, and employment difficulties over the course of the dissolution
proceedings by (1) filing motions without confirming them; (2) initiating baseless
contempt proceedings; (3) contacting her attorney repeatedly after she withdrew;
(4) making excessive and unnecessary discovery requests; (5) appearing
unannounced at her home late at night to serve papers; and (6) coercing her into
39 Parenting Plan at HV.
40 In re Marriage of Giordano. 57 Wn. App. 74, 78, 787 P.2d 51 (1990) (no
abuse of discretion in imposing moratorium on motions where parties were unduly
litigious, as moratorium was not total denial of access, was designed to prevent
additional waste judicial resources, delayed hearing for efficient resolution, and
provided safety valve for emergencies); see also RCW 2.28.010(3).
12
No. 70804-0-1/13
agreeing to inaccurate proposed findings and inadequate child support. Montgomery
also testified that Nadir failed to pay an attorney fee award of $1,500 as required in
the temporary orders entered early in the proceedings. This evidence supports the
trial court's finding of Nadir's abusive use of litigation. Because the condition is
tailored to prevent Nadir from unnecessarily compounding Montgomery's legal costs
with meritless filings as Montgomery described at trial, Nadir fails to demonstrate any
abuse of discretion in the trial court's imposition of the condition.
Child Support
Nadir challenges the trial court's denial of his request for a deviation from the
standard child support calculation based on his child support obligation for his older
son from a previous relationship. RCW 26.19.075(1 )(e) permits the court to grant a
downward deviation from the support schedule "when either or both of the parents
before the court have children from other relationships to whom the parent owes a
duty of support." "A deviation from the standard support amount is an exception and
should only be used where it would be inequitable not to do so."41 "It is within the trial
court's discretion to grant or deny a deviation and, generally, trial courts are not
reversed on such decisions."42
Where a party requests a deviation from the standard child support calculation,
the superior court "shall enter findings that specify reasons for any deviation or any
denial of a party's request for any deviation from the standard calculation made by
the court."43 RCW 26.19.075(2) requires disclosure of all income and resources of
41 In re Marriage of Goodell. 130 Wn. App. 381, 391, 122 P.3d 929 (2005).
42 Id.43 RCW 26.19.075(3).
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No. 70804-0-1/14
the parties, their "new spouses or new domestic partners, and other adults in the
households." "The function of RCW 26.19.075(2) is to preclude a deviation from
being granted unless (1) the parties have fully disclosed their resources and (2) the
court enters specific reasons for the deviation."44
Here, the trial court found that "[t]he deviation sought by the obligor was
denied because: no good reason exists to justify deviation."45 Nadir contends this
finding is insufficient because he presented evidence to support his request. Based
on our review of the trial transcript and the limited record before this court on appeal,
we disagree.
Nadir admitted during his testimony that, despite his request to have the court
consider the financial circumstances of both households, he had not provided any
financial information for his fiancee, who was living with him. Although he testified
that he regularly paid child support for his older son, Nadir did not present any court
order requiring child support. Instead, when asked by the trial court during closing
argument which exhibits supported his request for a deviation, Nadir's counsel
indicated only that his "bank statements" and his testimony established his
payments.46
Here, Nadir claims that he "presented his bank statements as evidence at
trial."47 But the record before this court indicates that the bank statements on which
44 In re Marriage of Holmes. 128 Wn. App. 727, 737-38, 117 P.3d 370 (2005).
45 Order of Child Support at If 3.8.
46 RP (July 15, 2013) at 761.
47 Reply Br. at 11.
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No. 70804-0-1/15
he relies in his briefing were not admitted at trial.48
Moreover, nothing in the record before this court identifies the reasons Nadir
claimed below to demonstrate that it would be inequitable to apply the standard
calculation. And Nadir does not argue or establish that the standard calculation
would be inequitable in his briefing before this court. On this record, we see no
abuse of discretion in the trial court's denial of his request for a deviation, despite the
conclusory finding.
Nadir also assigns error to the trial court's failure to give him a credit against
his basic support obligation for his health insurance payment for his coverage of N.N.
Nadir claims that his paystubs and bank statements "that were admitted as evidence
at trial" demonstrate that he was entitled to a credit.49 But he admitted on cross-
examination that the document provided by his employer showing a "breakdown of
medical coverage" for each family member was not in the record before the trial
court.50 And according to Montgomery, because Nadir refused to authorize her to
access his policy for N.N.'s benefit while in her care, she had to obtain medical
insurance for N.N. from "the State."51 Moreover, the trial court indicated in written
findings in the child support order that the evidence presented at trial was insufficient
48 In his reply brief, Nadir claims that certain entries in his bank records,
Exhibit 69, showing only dates, varying amounts, and check numbers demonstrate
his child support payments. He fails to identify anything in the record before the trial
court to indicate that those particular entries pertain to child support payments.
Moreover, Exhibit 69, which was forwarded from the superior court, is marked "For ID
Only." Nadir does not indicate in his briefing whether he believes Exhibit 69 was
actually offered or admitted into evidence during trial, and if so, when.
49 Appellant's Br. at 15. Nadir does not identify any admitted trial exhibits by
number to support this claim.
50 RP (July 10, 2013) at 668.
51 RP (July 2, 2013) at 100.
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No. 70804-0-1/16
to determine how health insurance should be provided for N.N.52 On this record,
Nadir fails to demonstrate that he is entitled to the credit he claims.53
Attorney Fees
Nadir next challenges the trial court's award of attorney fees to Montgomery.
He claims the award must be reversed because the trial court did not enter findings
as to intransigence or need and ability to pay and failed to consider relevant factors,
indicate how the award was calculated, and allow him to respond to the requested
fee amount.
Trial courts have broad discretion to award attorney fees in a dissolution action
under RCW 26.09.140.54 The party challenging an award bears the burden of
proving that the trial court exercised this discretion in a way that was clearly
untenable or manifestly unreasonable.55 Generally, a trial court must consider a
party's ability to pay its own legal costs before awarding it attorney fees, but the
financial resources of the party seeking fees is irrelevant when the award of such
fees is premised upon a need for additional legal services caused by the other party's
52 See Order of Child Support at U3.18.
53 In his reply brief, Nadir identifies "conflict" between the child support order
and the attached worksheet and "improper calculations" with regard to his gross
income and retirement calculations. Reply Br. at 12. To the extent he intended to
assert an independent ground for reversal, it comes too late to warrant our
consideration. See Cowiche Canyon. 118 Wn.2d at 809.
54 In re Marriage of Fernau. 39 Wn. App. 695, 708, 694 P.2d 1092 (1984).
RCW 26.09.140 provides in pertinent part, "The court from time to time after
considering the financial resources of both parties may order a party to pay a
reasonable amount for the cost to the other party of maintaining or defending any
proceeding under this chapter and for reasonable attorneys' fees or other
professional fees in connection therewith, including sums for legal services rendered
and costs incurred prior to the commencement of the proceeding or enforcement or
modification proceedings after entry of judgment."
55 See Abel v. Abel. 47 Wn.2d 816, 819, 289 P.2d 724 (1955).
16
No. 70804-0-1/17
intransigence.56 Normally, the trial court should enter findings of fact and conclusions
of law to allow for review of the basis for the award of fees and method of calculating
the amount of the award.57 But an order entered without findings of fact or
conclusions of law does not necessarily prevent effective review or constitute
reversible error.58
Here, the trial court found in the parenting plan that Nadir "has engaged in
abusive use of litigation."59 The court was aware of the parties' differing financial
resources after determining child support. Although they are not before this court in
the proper form, Montgomery has provided her brief requesting a fee award and a
series of e-mail messages between the superior court clerk and both counsel that set
a schedule for briefing on attorney fees. In her brief, Montgomery requests $9,558 in
attorney fees and $975 in costs, both of which amounts the trial court awarded in the
judgment. Nadir does not claim that Montgomery failed to properly document her fee
request or that the trial court could not properly consider her brief and adopt its
analysis. Under these circumstances, Nadir fails to demonstrate an abuse of
discretion in the trial court's award of fees.
Finally, Montgomery requests fees on appeal. Under RAP 18.1, this court
may award attorney fees if authorized by applicable law. RCW 26.09.140 provides
56 In re Marriage of Foley. 84 Wn. App. 839, 846, 930 P.2d 929 (1997).
57 See In re Marriage of Knight. 75 Wn. App. 721, 729-30, 880 P.2d 71 (1994).
58 In re the Matter of the Parentage of J.M.K.. 155Wn.2d374, 395-96, 119
P.3d 840 (2005) (affirming award of attorney fees despite lack of findings where
"record as a whole" supported trial court's exercise of broad discretion).
59 Parenting Plan at UV.
17
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for fees on appeal.60 In exercising our discretion under the statute, we consider the
arguable merit of the issues on appeal and the parties' financial resources.61 Given
Nadir's failure to provide a complete record and to present cogent argument based
on relevant authority and the record, several issues he raises on appeal have limited
arguable merit. And the record demonstrates that Nadir has significant financial
resources, while Montgomery is unemployed and has limited means to pay legal fees.
Therefore, we award attorney fees and costs to Montgomery, subject to her
compliance with RAP 18.1.
Affirmed. \
WE CONCUR:
r"^*"
60 "Upon any 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." RCW 26.09.140.
61 In re Marriage of C.M.C.. 87 Wn. App. 84, 89, 940 P.2d 669 (1997).
18