FILED OCTOBER 18, 2018 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In the Matter of the Marriage of ) No. 35206-4-111 ) JENNIFER LYNN WADLOW, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) ROBERT BLAINE WADLOW, ) ) Respondent. )
LAWRENCE-BERREY, C.J. - Jennifer Wadlow appeals from the final court
commissioner's order, two orders denying revision, and "from all rulings or failures to
rule merged therein." Clerks Papers (CP) at 217. The orders arise out of Ms. Wadlow's
petition to modify the parties' child support order, and Robert Wadlow's petition to
modify the parties' parenting plan. For the reasons discussed below, we reverse and
remand the two revision orders and award Ms. Wadlow a portion of her attorney fees. No. 35206-4-111 In re Marr. of Wadlow
FACTS
The Wadlows filed and finalized their dissolution action in Lincoln County,
Washington, although they lived in Benton County. The final orders included a parenting
plan and a child support order.
Years later, Mr. Wadlow left on Ms. Wadlow's doorstep a motion to modify the
child support and a proposed parenting plan. Ms. Wadlow hired an attorney. Her
attorney confirmed that Mr. Wadlow had not actually filed the petition in Lincoln County.
Later that year, Ms. Wadlow paid a filing fee in Benton County and filed her
petition to modify the Lincoln County child support order. Mr. Wadlow then filed a
petition to modify the parenting plan under the recently opened Benton County cause
number. Ms. Wadlow responded to that petition and requested that the court
commissioner require Mr. Wadlow "to pay all of [her] fees and costs in this action, based
on his greater ability to pay and her need, and based upon his filing a petition [for a major
modification] ... because there is no statutory grounds factually alleged .... " CP at 166.
She also filed a memorandum that detailed her reasons for believing that Mr. Wadlow's
petition was frivolous and explicitly requested CR 11 attorney fee sanctions.
The matter proceeded to an adequate cause hearing on Mr. Wadlow's petition to
modify the parenting plan. During her argument, Ms. Wadlow requested attorney fees
2 No. 35206-4-III In re Marr. of Wadlow
under CR 11. The court commissioner determined that Mr. Wadlow had not established
grounds for a major or minor modification, but agreed that the parties needed to clarify
the parenting plan to provide for beginning and ending times for vacations and holidays.
The commissioner ordered the parties to mediation. The commissioner did not address
Ms. Wadlow's request for attorney fees and costs.
A couple of months later, the parties agreed to precise days and times for vacations
and holidays, and also on an increased amount of monthly child support payable to Ms.
Wadlow. But the parties were unable to resolve a few issues, including when the
increased child support payments should begin and Ms. Wadlow's request for attorney
fees. The parties scheduled a hearing before the court commissioner to rule on these
unresolved issues.
Ms. Wadlow asked that the increased child support be retroactive to the date she
filed her petition to modify. Mr. Wadlow argued that the child support should not be
retroactive. The court commissioner decided the child support should be retroactive to
two months after Ms. Wadlow filed her petition.
Ms. Wadlow asked for Mr. Wadlow to pay some or all of her attorney fees related
to both his unsuccessful petition to modify the parenting plan and her successful petition
to modify child support. Her request for attorney fees had two bases. Her first basis was
3 No. 35206-4-III In re Marr. of Wadlow
RCW 26.09.140. That provision allows a court to award attorney fees in dissolution
proceedings based on the parties' disparate financial circumstances. Her second basis
was that Mr. Wadlow delayed providing necessary financial information and his delay
constituted intransigence that increased her attorney fees. Mr. Wadlow countered these
arguments at the hearing. Ultimately, the court commissioner decided that each party had
the financial means to pay for their own attorneys and denied Ms. Wadlow's request for
fees.
The parties later presented proposed orders to the court commissioner. Mr.
Wadlow's proposed order stated that the commissioner had granted a minor modification
of the parenting plan. Ms. Wadlow disputed this and argued that the commissioner had
determined months earlier that there was no basis for a minor or a major modification.
She further argued that the amended parenting plan was only a clarification. Mr. Wadlow
argued that he felt the changes were substantial and, therefore, amounted to a minor
modification. The commissioner compared the original plan to the amended plan and
noted that specific dates and times for holiday and vacation visitations were added to the
amended plan. Based on the amount of detail added, the commissioner determined that
the amended parenting plan was a minor modification.
4 No. 35206-4-III In re Marr. of Wadlow
Ms. Wadlow filed two motions for revision of the court commissioner's decision.
The first argued that the commissioner erred by setting the effective date of the amended
child support order two months after she had filed her petition to modify. The second
motion argued that the commissioner erred by not awarding her attorney fees. In her
second motion, Ms. Wadlow conceded that she had not argued RCW 26.09.140 to the
commissioner at the initial adequate cause hearing. 1 This concession was confusing for
two reasons. First, she actually had requested attorney fees on that basis in her initial
response to the November 29 adequate cause hearing. Second, it obfuscated the fact, set
forth in her prior sentence quoted below, that she had properly raised RCW 26.09.140 to
the commissioner.
The superior court issued separate written orders denying Ms. Wadlow' s motions
to revise. Pertaining to the motion for revision of child support, the court initially noted
that its review was de novo. But the court then explained its refusal to revise the
1 In the memorandum accompanying her motion to revise, Ms. Wadlow wrote: [RCW 26.04.140] is one basis specified in the motion for attorney fees denied January 31st, 2017. (The motion for fees on this basis (need versus ability to pay) was not before the Court at the time of the adequate cause hearing November 29th, 2016. CP at 131.
5 No. 35206-4-III In re Marr. of Wadlow
commissioner's "discretionary decision as to the commencement date" was because the
decision was not in conflict with the applicable statute. CP at 195.
Pertaining to the motion for revision of order denying attorney fees, the court
misunderstood Ms. Wadlow's concession. The court thought that Ms. Wadlow conceded
she had not argued RCW 26.09.140 to the commissioner and, on that basis, denied her
request for attorney fees.
Ms. Wadlow timely appealed.
ANALYSIS
Under RCW 2.24.050, the findings and orders of a court commissioner not
successfully revised become the orders and findings of the superior court. "A revision
denial constitutes an adoption of the commissioner's decision, and the court is not
required to enter separate findings and conclusions." In re Marriage of Williams, 156
Wn. App. 22, 27-28, 232 P.3d 573 (2010). On appeal, this court reviews the superior
court's ruling, not the commissioner's. In re Marriage of Stewart, 133 Wn. App. 545,
550, 137 P.3d 25 (2006).
Ms. Wadlow contends that the court commissioner and the superior court
committed various errors. We address her arguments below.
A. CONSTITUTIONAL RIGHT TO REVISE
6 No. 35206-4-111 In re Marr. of Wadlow
Ms. Wadlow contends that the superior court denied her constitutional right to
revision when it refused to consider her request for attorney fees under RCW 26.09.140.
She combines this argument with her assertion that the trial court erred when it
determined she had waived the argument.
All commissioner rulings are subject to revision by the superior court.
RCW 2.24.050; WASH. CONST. art. IV, § 23. The superior court "reviews both the
commissioner's findings of fact and conclusions of law de novo based upon the evidence
and issues presented to the commissioner." State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d
132 (2004 ). This right ensures litigants that disputed decisions are made by elected
judges.
Here, the superior court mistakenly believed that Ms. Wadlow conceded she had
not argued RCW 26.09.140 to the commissioner. What Ms. Wadlow actually conceded
was that she had not argued RCW 26.09 .140 at the initial adequate cause hearing. But
Ms. Wadlow' s motion to revise did not relate to the initial adequate cause hearing, it
related to the second hearing. At that hearing, Ms. Wadlow referred to RCW 26.09.140,
and argued that the commissioner should award her attorney fees on that basis in addition
to Mr. Wadlow's intransigence. For this reason, the superior court erred in failing to
address the merits of Ms. Wadlow' s fee request.
7 No. 35206-4-111 In re Marr. of Wadlow
B. DE NOVO REVIEW OF COMMENCEMENT DATE
Ms. Wadlow argues that the trial court failed to conduct a de novo review of the
effective date of the amended child support order.
As mentioned previously, the constitutional right to revision guarantees parties de
novo review of a court commissioner's decision. Here, the superior court explicitly noted
this right in its written order. But it seemingly contradicted itself when it explained its
refusal to revise was because the court commissioner's decision was discretionary and
consistent with the applicable statute. This basis for refusing to revise would dissuade
litigants from exercising their constitutional right to revise a commissioner's discretionary
decision. Such a basis is at odds with a litigant's constitutional right that guarantees de
novo review of any decision by a commissioner. We therefore reverse the superior
court's order denying motion for revision of order of child support.
C. MINOR MODIFICATION OR CLARIFICATION AND REQUEST FOR CR 11 SANCTIONS
Ms. Wadlow contends that the court commissioner erred when she termed the
amended parenting plan a minor modification rather than a clarification. Ms. Wadlow
asserts that the distinction is important because if the amended parenting plan was merely
a clarification, she might more likely prevail on her argument that Mr. Wadlow's petition
to modify the parenting plan was frivolous and subject to CR 11 sanctions.
8 No. 35206-4-III In re Marr. of Wadlow
We deem it unnecessary to decide whether the amended parenting plan was a
minor modification or a clarification. This is because we are unable to determine whether
CR 11 sanctions are warranted on this record. Ms. Wadlow only requested CR 11
sanctions once-at the initial adequate cause hearing. She did not raise the issue again at
the second or third hearing before the court commissioner or in her requests for revision.
These failures have resulted in a lack of any order or findings related to her request for
CR 11 sanctions. For this reason, there is nothing for us to review.
D. ATTORNEY FEES
Ms. Wadlow requests attorney fees on appeal pursuant to RAP 18.1 and
RCW 26.09.140. When such a request is made, appellate courts generally consider both
parties' financial circumstances as well as the merits of the appeal. See In re Marriage of
Kim, 179 Wn. App. 232, 256, 317 P.3d 555 (2014).
Ms. Wadlow timely filed a declaration of financial need and has therefore
complied with RAP 18.l(c). The declaration, in addition to the record before us,
sufficiently establishes that Ms. Wadlow has a financial need, and Mr. Wadlow has the
ability to pay. Ms. Wadlow has prevailed on three-fifths of the issues she has raised.
Subject to her compliance with RAP 18.1 ( d), we award her attorney that portion of her
reasonable attorney fees.
9 No. 35206-4-III In re Marr. of Wadlow
Reversed and remanded.
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.
lr... ... ,-... . ,..... ~'W\.\1, c..~. Lawrence-Berrey, C.J.
I CONCUR:
Fearing, J.
10 No. 35206-4-III
SIDDOWAY, J. (concurring)-The trial court may understandably be surprised by
our reversal of its order denying revision of the effective date of the amended child
support order. After all, if the court had denied the motion summarily, we would deem it
to have adopted the court commissioner's findings and conclusions, find no abuse of
discretion by the commissioner, and affirm. E.g., In re Marriage of Williams, 156 Wn.
App. 22, 27-28, 232 P.3d 573 (2010). I write separately to explain why, based on the
history of the unique standard applied to motions for revision of superior court
commissioner decisions, I reluctantly agree with my colleagues that the trial court's
explanation for its order is problematic.
Article IV, section 23 of the Washington Constitution provides for the
appointment of superior court commissioners "who shall have authority to perform like
duties as a judge of the superior court at chambers, subject to revision[s] by such
judge .... " RCW 2.24.050 governs the revision process, creating a 10 day period within
which a demand for revision can be made and providing that "[ s]uch revision shall be
upon the records of the case, and the findings of fact and conclusions of law entered by
the court commissioner."
In a 1996 law review article about revision of rulings by superior court
commissioners, Retired Judge Richard D. Hicks discussed four rules, arising out of four
cases, that he found "distinctly incongruent" with the intent behind article IV, section 23. No. 35206-4-111 In re Marriage of Wadlow (concurrence)
Richard D. Hicks, The Power, Removal, and Revision of Superior Court Commissioners,
32 GONZ. L. REV. 1 (1996-97). One is the rule that review of a superior court
commissioner's decision is "de novo on the record," which he characterized as a
misinterpretation of then-existing case law-a misinterpretation that he argues was first
announced by this court in In re Welfare of Smith, 8 Wn. App. 285,288, 505 P.2d 1295
(1973).
Judge Hicks's argument why Smith was in error begins with the first Washington
decision dealing with the principles of revision, handed down in State ex rel. Biddinger v.
Griffiths, 137 Wash. 448,242 P. 969 (1926). "The Biddinger court ... interpreted
'revision' to be the equivalent of 'review."' In re Marriage of Moody, 137 Wn.2d 979,
992,976 P.2d 1240 (1999) (citing Biddinger, 137 Wash. at 451). "In so holding, [the
Supreme Court] required the trial court judge to 'undertake an appellate court review of
the certified record'" and "' held the superior court to the same standards of review to
which it held itself under the statutes then currently in effect.'" Id. ( quoting Hicks,
supra, at 23 (emphasis omitted)).
As Judge Hicks explains, at the time the Washington Constitution was adopted in
1889, "higher courts did not review lower court's factual findings de novo on the record."
Hicks, supra, at 20. Rather, the higher court would not reverse the lower court ifthere
was substantial evidence supporting the lower court. Id. In 1893, the legislature changed
the higher court's standard of review, adopting a statute providing that a lower court's
2 No. 35206-4-111 In re Marriage of Wadlow (concurrence)
factual findings should be reviewed de novo on the record. Id. at 21. Under this
standard, "the supreme court could freely substitute its judgment for that of the trial court
on factual issues if supported by a preponderance of the evidence." Id. (citing Fischler v.
Nicklin, 51 Wn.2d 518,524,319 P.2d 1098 (1958)).
In 1951, the statute providing for the de novo standard "was first abrogated by the
court itself under the rule-making power ... and thereafter was expressly repealed by the
legislature." Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183
(1959). The Washington Supreme Court resumed reviewing factual findings of lower
courts by the same substantial evidence test that was in effect at the time the constitution
was adopted. Hicks, supra, at 21. Judge Hicks concluded that under the reasoning of
Biddinger, the substantial evidence standard that now served as the standard for Supreme
Court review (and had served as the standard for all but the anomalous 1893-1951 period)
should also be the standard for revision of a court commissioner's decision. It is a
position he contends finds direct support in the Supreme Court's Thorndike decision.
Thorndike described a trial under review in which "[t]he evidence was sharply in
conflict" and error had been assigned "upon the hypothesis that this court will try de novo
disputes of fact tried to the court below if all the evidence is certified here." Thorndike,
54 Wn.2d at 572. "[T]his hypothesis would have been true from 1893 until 1951," the
court explained, "but was not true prior to 1893 nor has it been true since 1951." Id.
3 No. 35206-4-111 In re Marriage of Wadlow (concurrence)
In Smith, this court focused on the standard for Supreme Court review in 1926,
when Biddinger was decided, and held that because the standard at the time was "de novo
on the record," then that is the standard that must be applied to revision of superior court
commissioner decisions. 8 Wn. App. at 288. Judge Hicks called this "clearly ...
erroneous." Hicks, supra, at 25. He argued, persuasively, that given Biddenger's
holding that "review" and "revision" were intended to be equivalent, the standard of
review-which was now substantial evidence-should be the standard for revision. Yet
he acknowledged that at the time he was writing, five later cases had already relied on
Smith. Id. at 26.
At this point, the "de novo on the record" standard for Supreme Court review that
existed from 1893 to 1951 is firmly established as the standard for revision, even if the
application of that standard was arrived at through flawed reasoning. In State v. Ramer,
151 Wn.2d 106, 113, 86 P.3d 132 (2004);the Supreme Court reiterated that, "[o]n
revision, the superior court reviews both the commissioner's findings of fact and
conclusions of law de novo based upon the evidence and issues presented to the
commissioner." In a footnote, it disapproved of contrary language in this court's opinion
in State v. Lown, 116 Wn. App. 402, 66 P.3d 660 (2003), which had held that a court
commissioner's findings of fact were reviewed for substantial evidence.
Under the "de novo on the record" standard of appellate review in effect for the
Supreme Court from 1893 to 1951, it was. the duty of the appellate court "'to find
4 No. 35206-4-III In re Marriage of Wadlow (concurrence)
substantially, as a new question the facts within the pleadings established by such proofs,
and determine the right of the parties upon the facts so found, even although the trial
court, upon such proofs, had found them differently.'" Thorndike, 54 Wn.2d at 574
(quoting Roberts v. Wash. Nat'! Bank, 11 Wash. 550, 554, 40 P. 225 (1895)) (emphasis
added). Given this historical source of the revision standard, I agree with my colleagues
that a superior court cannot decide a revision motion by reviewing a court
commissioner's discretionary decision for abuse of discretion. I find it irrational to
reverse such a decision when we would affirm the trial court if it had denied the revision
motion summarily. 1 But I agree with my brothers that there is a precedential basis for the
distinction.
1 Consistent with the concept that a motion for revision requires the superior court to find the facts "as a new question," our Supreme Court in 1985 disapproved of superior courts that merely adopted a court commissioner's findings: The record indicates that the Superior Court simply adopted the commissioner's findings of fact and conclusions of law as its own. We believe that the superior courts, in reviewing decisions of court commissioners pursuant to RCW 2.24.050, should enter their own findings of fact and conclusions of law into the record. See In re Welfare ofSmith, 8 Wn. App. 285, 505 P.2d 1295 (1973). In re Estate ofLarson, 103 Wn.2d 517,520 n.1, 694 P.2d 1051 (1985). Further illustrating the inconsistency in Washington courts' treatment of revision, Larson's holding was characterized as "misplace[ d]" in In re Dependency of B.S.S., 56 Wn. App. 169, 170-71, 782 P.2d 1100 (1989). It is now the norm to treat unexplained revision decisions as having adopted the findings and conclusions of the court commissioner. 5