In Re The Marriage Of: Francisco Antonio Castillos, App. And Ilhamiye Duyar Castillos, Res.

• Court: Court of Appeals of Washington
• Decided: January 19, 2016
• Docket: 73117-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Marriage of No. 73117-3-1

FRANCISCO A. CASTILLOS,

Appellant,

and ORDER DENYING MOTION ISABELLA CASTILLOS, TO PUBLISH, WITHDRAWING & REPLACING OPINION Respondent.

Respondent filed a motion to publish the court's opinion filed November 16,

2015. Appellant filed an answer. The court has considered the motion and determined

that the motion to publish should be denied and that the opinion should be withdrawn

and a replacement opinion filed.

The opinion has been changed by adding a sentence and footnote on page 5

after the first sentence of the first full paragraph as follows:

The trial court did not mention or make any findings on an alternative equity-based approach for an award of fees under RCW 26.09.140.14

14 See Matter of Marriage of Van Camp. 82 Wn. App. 339, 342, 918 P.2d 509 (1996) (trial court was not required to apply lodestar method in determining an award of attorney fees in dissolution case under RCW 26.09.140); In re Guardianship of Decker, 188 Wn. App. 429, 446- 47, 353 P.3d 669, review denied. 184 Wn.2d 1015, 360 P.3d 818 (2015) (trial court was not required to conduct a lodestar analysis in determining an award of attorney fees as costs when determining compensation under the guardianship statute). Here, the court did not enter any findings applying either a lodestar analysis or equitable considerations in awarding attorney fees. No. 73117-3-1/2

Now, therefore, it is hereby

ORDERED that respondent's motion to publish is denied. It is further

ORDERED that the opinion of this court filed November 16, 2015 is withdrawn

and a replacement opinion filed with the revisions noted above. ^ cT

Dated this JTclav of January, 2016.

tP

£zt7< J«

Order Denying Motion to Publish, Withdrawing and Replacing Opinion - 2 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Marriage of No. 73117-3-1 r-o

and

ISABELLA CASTILLOS, UNPUBLISHED OPINION CO

Respondent. FILED: January 19, 2016

Verellen, A.C.J. — A trial court generally determines the amount of an

attorney fee award based upon a lodestar calculation of reasonable hours and

reasonable rates. Here, the trial court decided that the award of requested fees was

reasonable, pending the filing of counsel's fee declaration. Counsel filed a fee

declaration, but it is not clear that the superior court commissioner analyzed the

reasonable hours or reasonable rates or even reviewed the declaration. Therefore,

we reverse the judgment awarding fees and remand to develop an adequate record

with adequate findings in support of an award of fees.

FACTS

Isabella and Francisco Castillos married in 1981.1 On July 6, 2012, after a

two-day trial, a decree of dissolution was entered dissolving their marriage. The trial

For clarity, we refer to the Castillos by their first names. No. 73117-3-1/2

court ordered Francisco to pay $2,500 in spousal maintenance on or before the 15th

of each month.

On November 21, 2014, Isabella filed a "Motion/Declaration for an Order to

Show Cause Re Contempt" in King County Superior Court after Francisco failed to

pay the November spousal maintenance.2 In addition to back maintenance, she

requested that Francisco prepare a qualified domestic relations order (QDRO) and

that the court enter a judgment for her attorney fees in the amount of $7,728.56.

At the show cause hearing on January 16, 2015, Francisco argued the

superior court should consider his December 15, 2014 petition to modify spousal

maintenance in determining the amount of spousal maintenance owed. But the

superior court refused to consider the petition without proof of service. In response,

Francisco's attorney attempted to serve Isabella in court. But the superior court

commissioner disallowed such service, stating, "When a judicial officer sits on the

bench, you may serve nobody without asking the person sitting on the bench. And

we're not going to do that now."3

Next, Francisco argued that Isabella had "not shown any basis for the

calculation of attorney's fees."4 He also told the court, "The [QDRO] is being done.

That is in the works. Itjust takes the federal government a long time to finally do that.

But that is in the works and I don't know that [Isabella,] if she's received it or not, but

she should receive it."5

2 Clerk's Papers (CP) at 25-28. 3 Report of Proceedings (RP) (Jan. 16, 2015) at 9. 4 CP at 65. 5RP(Jan. 16, 2015) at 11. No. 73117-3-1/3

The commissioner found that Francisco intentionally failed to comply with the

spousal maintenance award and ordered him to pay back maintenance in the amount

of $7,500 for the months of November and December 2014 and January 2015.

In the January 16, 2015 order on show cause, the commissioner entered

findings and conclusions that the requested attorney fees were "reasonable" and

ordered Francisco pay "for reasonable/fair fees" in the amount of $7,728.56, "pending

filing of [Isabella's] counsel's declaration re fees, which shall be provided to counsel

and court."6 The commissioner also ordered Francisco to prepare a QDRO for his

Federal Aviation Administration (FAA) retirement plan.

On January 23, 2015, Isabella's attorney filed her "Declaration re Fees on

Motion for Contempt of Court."7 The declaration itemized the time incurred and the

hourly rate charged. There is no indication that the commissioner reviewed the

declaration.

Francisco appeals the January 16, 2015 award of Isabella's attorney fees.

ANALYSIS

First, Isabella argues the January 16, 2015 judgment was not a final judgment

and therefore is not appealable. But her argument is not compelling. Substance

controls over form when analyzing whether an order constitutes a final judgment.8

The January 16, 2015 award is in the form of a judgment, including an express award

6 CP at 91-92. 7 CP at 103. 8 Rhodesv.D&D Enters.. Inc.. 16 Wn. App. 175, 177, 554 P.2d 390 (1976) (for appeal purposes, in determining whether particular judicial determination is an order, final judgment, or final order, substance controls over form and "the court looks to the content of a document rather than its title"). No. 73117-3-1/4

of fees in the amount of $7,728.56, and a judgment summary. More important, the

award is a judgment in substance. A judgment is final and therefore appealable

"even if it directs performance of certain subsidiary acts in carrying out the judgment,

the right to the benefit of which is adjudicated in that judgment."9 Here, the pending

filing of a fee declaration provision functions as a subsidiary act to the award of fees.

Further, Isabella argues that a subsequent ruling enforcing the judgment was the

actual final judgment. The necessary premise of her argument is that the notice of

appeal was premature. But even under her theory, such a premature notice of

appeal would be effective. RAP 5.2(g) provides that "[a] notice of appeal... filed

after the announcement of a decision but before entry of the decision will be treated

as filed on the day following the entry of the decision." Even ifthe subsequent order

on enforcement is considered the entry of the final judgment awarding attorney fees,

the January 16 order announced that decision, and the notice of appeal is effective.

We conclude the January 16, 2015 award of attorney fees is appealable.

Second, Francisco argues the superior court commissioner "completely failed

to review any declaration or evidentiary basis before entering a judgmentfor the full

amount of fees sought" by Isabella.10 We agree.

This court reviews an award of attorney fees for an abuse of discretion.11

Discretion is abused when the superior court exercises it "on untenable grounds or

9 Wlasiukv. Whirlpool Corp.. 76 Wn. App. 250, 255, 884 P.2d 13 (1994). 10 Appellant's Br. at 5. 11 Estrada v. McNultv. 98 Wn. App. 717, 723, 988 P.2d 492 (1999). No. 73117-3-1/5

for untenable reasons. The burden of demonstrating that a fee is reasonable is upon

the fee applicant."12

Generally, Washington courts apply the lodestar method to calculate attorney

fees.13 The trial court did not mention or make any findings on an alternative equity-

based approach for an award of fees under RCW 26.09.140.14 To arrive at a

lodestar award, the court first considers the number of hours "'reasonably expended

on the matter.'"15 To this end, the attorney "'must provide reasonable documentation

of the work performed,'" including the number of hours worked, type of work

performed, and category of attorney who performed the work.16 The awarding court

should discount hours "spent on unsuccessful claims, duplicated effort, or otherwise

unproductive time."17

12 Berrvman v. Metcalf. 177 Wn. App. 644, 657, 312 P.3d 745 (2013) review denied sub nom. Berrvman v. Farmers Ins. Co.. 179 Wn. 2d 1026, 320 P.3d 718 (2014) (citation omitted). 13 Mahler v. Szucs. 135 Wn.2d 398, 433, 957 P.2d 632 (1998), overruled on other grounds by Matsvuk v. State Farm Fire & Cas. Co.. 173 Wn.2d 643, 272 P.3d 802(2012). 14 See Matter of Marriage of Van Camp. 82 Wn. App. 339, 342, 918 P.2d 509 (1996) (trial court was not required to apply lodestar method in determining an award of attorney fees in dissolution case under RCW 26.09.140); In re Guardianship of Decker. 188 Wn. App. 429, 446-47, 353 P.3d 669, review denied. 184 Wn.2d 1015, 360 P.3d 818 (2015) (trial court was not required to conduct a lodestar analysis in determining an award of attorney fees as costs when determining compensation under the guardianship statute). Here, the court did not enter any findings applying either a lodestar analysis or equitable considerations in awarding attorney fees. 15 McGreevv v. Or. Mut. Ins. Co., 90 Wn. App. 283, 291, 951 P .2d 798 (1998) (emphasis omitted) (quoting Scott Fetzer Co. v. Weeks. 122 Wn.2d 141, 149, 859 P.2d 1210 (1993)). 16 \± at 292 (quoting Bowers v. Transamerica Title Ins. Co.. 100 Wn.2d 581, 597, 675P.2d 193(1983)). 17 Id. No. 73117-3-1/6

Next, the court determines if the hourly fee charged was reasonable.18 The

attorney's usual fee is not conclusively reasonable and may require an adjustment.19

Then the court multiples the reasonable hourly rate by the reasonable number

of hours expended on the litigation to produce the lodestar fee.20 After the lodestar

figure is calculated, the court may consider an adjustment based on additional

factors.21

"Courts must take an active role in assessing the reasonableness of fee

awards, rather than treating cost decisions as a litigation afterthought. Courts should

not simply accept unquestioningly fee affidavits from counsel."22 The trial court "must

supply findings of fact and conclusions of law sufficient to permit a reviewing court to

determine why the trial court awarded the amount in question."23

While a superior court "does not need to deduct hours here and there just to

prove to the appellate court that it has taken an active role in assessing the

reasonableness of a fee request[,]" the court's "findings must do more than give lip

service to the word 'reasonable.' The findings must show how the court resolved

disputed issues offact and the conclusions must explain the court's analysis."24 The

18 Id, at 291. 19 Id, 20 Id, 21 Id,; Mahler. 135 Wn.2d at 434. 22 Mahler, 135 Wn.2d at 434-35. 23 SentinelC3. Inc. v. Hunt. 181 Wn.2d 127, 144, 331 P.3d 40 (2014). 24 Berrvman. 177 Wn. App. at 658. No. 73117-3-1/7

"absence of an adequate record upon which to review a fee award will result in a

remand of the award to the trial court to develop such a record."25

Here, the superior court entered a conclusory finding that the requested fees

were reasonable. The court then ordered Francisco to pay the amount of attorney

fees requested by Isabella "pending filing of counsel's declaration [regarding] fees,

which shall be provided to counsel and court."26 But there is no indication the

superior court commissioner actively and independently confronted the question of

what was a reasonable fee either before or after counsel's fee declaration was filed.

Moreover, there is no evidence the commissioner even reviewed the declaration.

Therefore, it does not appear the superior court meaningfully reviewed the basis of

the calculation of Isabella's attorney fees. The superior court simply accepted

Isabella's requested attorney fees before considering her attorney's documentation of

the work performed.

On this record, the superior court's findings are inadequate to support a

determination that the requested fees are reasonable. We reverse the award and

remand for the entry of findings offact and conclusions of law that explain the basis

for an award of fees.

Third, Francisco argues this court should "vacate the requirement" that he

draft a QDRO because the QDRO has already been filed.27 Confusingly, Francisco

did not represent that a QDRO had already been filed at the show cause hearing.

25 Mahler. 135 Wn.2d at 435. 26 CP at 92. 27 Appellant's Br. at 19. No. 73117-3-1/8

Instead, Francisco told the superior court "[t]he [QDRO] is being done. That is in the

works."28 Regardless, the key point is that a QDRO for Francisco's FAA retirement

plan had been filed in 2012.29 This court will not entertain an appeal of an issue

where no effective relief can be given.30 The issue is moot.31

Fourth, Francisco assigns error to the superior court commissioner's decision

not to consider the filing of his petition to modify spousal support. Here, the superior

court commissioner reviewed the clerk's electronic court records and determined

there was no proof that Francisco had served Isabella with the petition to modify.

Francisco still urged the superior court to consider his petition, arguing that Isabella's

attorney "was aware of it; I've raised that defense earlier in the response [to the

motion for contempt] when I was contacted."32 But because Francisco's service of

process was deficient, the superior court did not abuse its discretion in declining to

consider the unserved petition.

Fifth, Francisco argues the commissioner improperly provided Isabella

immunity from service of process at the show cause hearing. We disagree.

The superior court "is generally in the best position to perceive and structure

its own proceedings."33 Accordingly, a superior court "has broad discretion to make a

variety of trial management decisions, ranging from 'the mode and order of

28RP(Jan. 16, 2015) at 11. 29 See CP at 19-22. 30 Orwick v. City of Seattle. 103 Wn.2d 249, 253, 692 P.2d 793 (1984). 31 Yacobellis v. City of Bellingham. 55 Wn. App. 706, 709, 780 P.2d 272 (1989). 32RP(Jan. 16, 2015) at 10. 33 State v. Dve. 178 Wn.2d 541, 547, 309 P.3d 1192 (2013).

8 No. 73117-3-1/9

interrogating witnesses and presenting evidence' to provisions for the order and

security of the courtroom."34 In order to effectuate the superior court's discretion, this

court grants the superior court broad discretion.35 We will not reverse unless such a

decision is "'manifestly unreasonable or based on untenable grounds or untenable

reasons.'"36

Here, it was within the superior court's discretion to refuse to allow Francisco's

attorney to serve Isabella during the show cause hearing. Francisco had alternate

methods of service available to him. On appeal, Francisco relies on several cases

concerning the "privilege of service of process immunity."37 But neither Isabella nor

her attorney asserted a claim of immunity at the hearing. Rather, the superior court

commissioner simply refused to allow the service in her courtroom and limited the

hearing to the motion for show cause regarding contempt. Because the superior

court commissioner has discretion to control proceedings in her courtroom, we reject

Francisco's argument.

Finally, Francisco argues he is entitled to attorney fees based on his need and

Isabella's ability to pay. Under RCW 26.09.140, this court has the discretion to order

a party to pay the other party's attorney fees associated with the appeal of a

dissolution action. "In exercising our discretion, we consider the arguable merit of the

34 jd, at 547-48 (quoting ER 611 (a)). 35 id, at 548. 36 jd, (quoting In re Marriage of Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362(1997)). 37 Appellant's Br. at 12-19 (citing Anderson v. Ivarsson. 77 Wn.2d 391, 462 P.2d 914 (1969); Warner v. Kresslv. 9 Wn. App. 358, 512 P.2d 1116 (1973); Employers Mut. Liab. Ins. Co. of Wis, v. Hitchcock. 158 F. Supp. 783 (D. Mo. 1958); Northern Light Tech.. Inc. v. Northern Lights Club. 236 F.3d 57 (1st Cir. 2001)). No. 73117-3-1/10

issues on appeal and the parties' financial resources."38 In order for us to consider

their financial resources, both parties must file financial affidavits no later than 10

days before the date the case is set for consideration on the merits.39 Because

Francisco has not timely filed a financial affidavit and because the ultimate question

of the amount of fees remains to be resolved on remand, we decline to award

Francisco any fees on appeal.40

We reverse the January 16, 2015 judgment awarding attorney fees of

$7,728.56 and remand to develop an adequate record with findings in support of an

award of fees.

WE CONCUR:

38 In re Marriage of C.M.C.. 87 Wn. App. 84, 89, 940 P.2d 669 (1997). 39 RAP 18.1(c) ([E]ach party must serve upon the other and file a financial affidavit no later than 10 days prior to the date the case is set for oral argument or consideration on the merits. . .. Any answer to an affidavit of financial need must be filed and served within 7 days after service of the affidavit.). 40 RAP 18.1; In re Marriage of Crosetto. 82 Wn. App. 545, 565-66, 918 P.2d 954 (1996). Isabella's request for fees on appeal is denied because she is not the prevailing party on appeal.