In Re The Marriage Of Michelle Hope Doyle F/k/a Shea, App And Danielle Nicole Hashman, Resp

• Court: Court of Appeals of Washington
• Decided: July 15, 2024
• Docket: 86072-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of: No. 86072-1-I

DANIELLE HASHMAN, DIVISION ONE

Respondent, UNPUBLISHED OPINION

and

MICHELLE DOYLE fka/SHEA,

Appellant.

FELDMAN, J. — Michelle Doyle appeals a superior court order vacating a

commissioners ruling that her former spouse, Danielle Hashman, “is in contempt”

due to her failure to comply with the parenting plan for their daughter. Doyle claims

that the superior court erred by (a) deciding Hashman’s motion for revision of the

commissioner’s ruling without oral argument and (b) failing to review the

commissioner’s ruling “de novo” when deciding that motion. Because Doyle has

not established reversible error, we affirm.

I

Michelle Doyle and Danielle Hashman are divorced spouses who share

parental responsibility for their daughter. A court ordered parenting plan details

their parenting arrangement, including drop off times, rights of the nonresident

parent, and a schedule for dividing parenting time during holidays. No. 86072-1-I

In September 2023, Doyle filed a motion for contempt based on alleged

violations of the parenting plan. Relevant here, Doyle argued that Hashman

violated the parenting plan when she delayed an exchange of their daughter by

one hour at the end of a holiday weekend. Following a contempt hearing, a

commissioner found, “Danielle Hashman delayed an exchange by one hour on

9/5/2023 in violation of ¶ ¶ 8, 10” of the parenting plan. The commissioner also

found, “When [Hashman] did not obey the parenting/custody order, they did not

act in bad faith.” The order then states, “Danielle Nicole Hashman is in contempt.”

Based on that determination, the commissioner ordered one hour of makeup

parenting time and entered a money judgment in Doyle’s favor for “Lawyer fees

and costs” totaling $224.98.

On November 13, 2023, Hashman filed a motion for revision of the

commissioner’s order in King County Superior Court. Hashman noted the motion

for decision on November 27 and expressly designated the motion for decision

“Without oral argument.” On November 14, the motion was reassigned to a new

judge, but the hearing date was not changed. In preparation for the hearing,

Hashman filed a working papers submission list that listed 10 documents for the

court to review. Doyle then filed a detailed response to Hashman’s motion for

revision, which indicated “ORAL ARGUMENT REQUESTED,” and submitted her

own working papers submission list that listed 19 documents for the court to

review.

On November 28, the superior court entered an order granting Hashman’s

motion for revision. The court’s order states in relevant part:

-2- No. 86072-1-I

After reviewing the record de novo and all relevant law this court rules as follows:

The Court adopts the findings made by the Commissioner on the record on October 27, 2023 and in the written order and agrees that the Petitioner didn’t act in bad faith in returning the child at 6:00 p.m. rather than 5:00 p.m.

However, the Commission then erred when it found the Petitioner in contempt as a contempt requires bad faith.

Petitioner’s motion for Revision is Granted.

Despite Doyle’s request for oral argument, the superior court decided the motion

without oral argument. Doyle appeals.

II

A. Oral Argument

Doyle argues the superior court erred in deciding Hashman’s motion for

revision without oral argument. We disagree.

King County Local Rules (KCLCR) and King County Family Court Rules

(KCFCR) govern the procedure for submitting and deciding a motion for revision

of a commissioner’s order. Relevant here, KCLCR 7(b)(3)(A)(ii) states that

motions for revision of a commissioner’s order are to be noted with oral argument

except in circumstances not applicable here, but then provides: “The judge may

strike oral argument.” Although the rule requires the moving party (here,

Hashman) to note a motion for revision with oral argument, it does not constrain a

judge’s discretion to strike oral argument and rule on a motion for revision based

on the parties’ written submissions, as the superior court did here. When a trial

court exercises its discretion to decide a motion without oral argument, we review

that decision for abuse of discretion. State v. Bandura, 85 Wn. App. 87, 92-93,

-3- No. 86072-1-I

931 P.2d 174 (1997). A court abuses its discretion by exercising it on untenable

grounds or for untenable reasons. In re Marrige of Williams, 156 Wn. App. 22, 27,

232 P.3d 573 (2010).

Bandura is instructive on this point. Bandura argued there that the trial court

violated his right to procedural due process when it denied him an opportunity to

orally argue a posttrial motion. 85 Wn. App. at 92. The court rejected that

argument and held, “Procedural due process . . . does not mandate oral argument

on a written motion.” Critical here, the court added that “oral argument is a matter

of discretion, so long as the movant is given the opportunity to argue in writing his

or her version of the facts and law. Here, the trial court allowed Bandura to present

his position in writing, and it did not abuse its discretion.” Id. at 92-93 (footnote

omitted, emphasis added). In support of its holding, the court cited two

Washington cases regarding due process principles, observed that appellate

courts in Washington also may decide an appeal without oral argument, and noted

that the Ninth Circuit has likewise held that due process is not violated by court

rules requiring that motions be presented without oral argument. Id. at 93 n.9

(citing Matter of Deming, 108 Wn.2d 82, 95, 736 P.2d 639 (1987), Parker v. United

Airlines, Inc., 32 Wn. App. 722, 728, 649 P.2d 181 (1982), current RAP 11.4(j),

and Morrow v. Topping, 437 F.2d 1155, 1156 (9th Cir.1971)).

While the court’s analysis in Bandura is couched in constitutional terms, the

same reasoning and result are equally applicable here. The superior court in this

case exercised its discretion, as KCLCR 7(b)(3)(A)(ii) and Bandura permit, to

decide Hashman’s motion for revision without oral argument. Before the court

decided Hashman’s motion, it had received Doyle’s detailed response to the

-4- No. 86072-1-I

motion as well as her working papers submission list that listed 19 documents that

Doyle prompted the court to review. Thus, while Doyle was denied the opportunity

to orally argue Hashman’s motion, she was able to present her position in writing.

As in Bandura, the superior court did not abuse its discretion when it granted

Hashman’s motion without oral argument.

On this record, Doyle’s reliance on Zurich Services Corporation v. Gene

Mace Construction, LLC, 26 Wn. App. 2d 10, 526 P.3d 46 (2023), is misplaced. In

Zurich, the court held that a party challenging a trial court’s procedural errors “must

demonstrate it was prejudiced by the trial court’s actions.” Id. at 28. The court

also explained that where the alleged error relates to an order shortening time,

prejudice would consist of “a lack of actual notice, a lack of time to prepare for the

motion, and no opportunity to submit case authority or provide countervailing oral

argument.” Id. The complaining party in Zurich was able to establish prejudice

because the trial court’s procedural errors left it with inadequate time to respond

to a dispositive motion. Id. Here, in contrast, Doyle submitted substantial briefing

opposing Hashman’s motion for revision, showing she had actual notice, adequate

time to prepare, and the opportunity to submit case authority and argument in

response to the motion. Thus, Zurich does not require reversal here. 1

1 Doyle alleges several other “procedural irregularities” relating to the motion for revision—such as

Hashman’s failure to renote the motion when it was assigned to a new judge and Hashman’s allegedly incomplete working papers submission list—but these deficiencies are attributable to Hashman, not the superior court, and Doyle cites no authority for her argument that any such irregularity requires automatic reversal here. See Seattle Bulk Shipping, Inc. v. Dep’t of Labor and Indus., 25 Wn. App. 2d 762, 778, 524 P.3d 733 (2023) (“Where no authorities are cited in support of a proposition, we are not required to search out authorities but may assume that counsel, after a diligent search, has found none.”). To the extent these deficiencies are chargeable to the superior court, Zurich requires prejudice, and Doyle—as discussed above—cannot show that she was prejudiced by any trial court deviation or irregularity here because she had actual notice of the November 27 hearing date for Hashman’s motion, which remained unchanged after the case was

-5- No. 86072-1-I

B. De Novo Review

Doyle next argues that the superior court failed to conduct the required de

novo review when it decided Hashman’s motion for revision. We disagree.

When a superior court decides a motion for revision of a commissioner’s

order, it considers “the records of the case, and the findings of fact and conclusions

of law entered by the court commissioner.” RCW 2.24.050. This review is “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). Because the superior court

applies de novo review, it is not required to defer to the discretion of the

commissioner and can redetermine both the facts and legal conclusions drawn

from the facts. In re Marriage of Dodd, 120 Wn. App. 638, 645, 86 P.3d 801 (2004).

Determining the appropriate legal standard and assessing whether a trial court

applied the correct legal standard are issues of law that we review de novo. In re

Dependency of M.H.P., 184 Wn.2d 741, 752-53, 364 P.3d 94 (2015).

The record shows that the superior court applied the correct de novo

standard in deciding Hashman’s motion for revision. Its order granting Hashman’s

motion states that the court “review[ed] the record de novo and all relevant law.”

The court neither indicated it deferred to the commissioner’s discretion nor stated

anything else suggesting it deviated from the proper de novo standard. Indeed,

while the court adopted the commissioner’s factual findings (which are not

challenged on appeal), it ruled “the Commission then erred when it found the

reassigned to another judge, and she had time to and did prepare responsive briefing, including her own working papers submission list, prior to the noted hearing date.

-6- No. 86072-1-I

Petitioner in contempt as a contempt requires bad faith.” There is no basis to

conclude that this was anything other than de novo review, as required.

Doyle again cites inapposite authority, primarily In re Welfare of Smith, 8

Wn. App. 285, 505 P.2d 1295 (1973). The trial court in Smith denied a motion for

revision and stated, “In other words, even if the appellate court—or in this case,

myself—reading the transcript would have arrived at a different decision, it does

not mean that the court can overturn the decision of the court commissioner if it is

supported by substantial evidence.” Id. at 286. The court of appeals reversed and

remanded the matter to the superior court because its ruling indicated that it had

erroneously applied a substantial evidence standard rather than de novo review.

Id. at 286, 288. Here, as noted, the superior court’s order on revision shows that

it applied the correct de novo standard.

Doyle also claims that the superior court could not have engaged in a true

de novo review because Hashman provided an incomplete working papers

submission list and the superior court did not identify what parts of the record it

relied on when making its ruling. This argument fails both legally and factually.

Legally, Doyle cites Smith in support of this argument, but Smith, as the above

discussion shows, does not support the argument, and Doyle cites no other

authority to support the argument. Factually, the record here shows that Doyle

submitted extensive briefing on the motion for revision, including her own working

papers submission list, so there is no basis to conclude that the superior court

improperly limited its review when it “review[ed] the record de novo” as its order

states. Because Doyle’s contrary argument is wholly speculative, she is not

entitled to appellate relief on this basis.

-7- No. 86072-1-I

III

Hashman requests reasonable attorney fees under RCW 26.09.140 and

RAP 18.9. We grant her request.

RCW 26.09.140 permits a court to award fees to the prevailing party in a

family law case after considering the financial resources of the parties. In re

Marriage of Hannah and McAdams, 27 Wn. App. 2d 577, 591, 541 P.3d 372

(2023). In determining whether a fee award is appropriate pursuant to the statute,

we consider both the parties’ relative ability to pay and the arguable merit of the

issues raised on appeal. In re Marriage of Leslie and Verhey, 90 Wn. App. 796,

807, 954 P.2d 330 (1998) (granting an award of fees to wife when husband was in

a “much better financial position” and wife presented meritorious legal arguments

on appeal). But here, Hashman “has not filed an affidavit of financial need with the

court in accordance with RAP 18.1(c), so we cannot grant fees under RCW

26.09.140.” In re Marriage of Hannah and McAdams, 27 Wn. App. 2d at 591.

RAP 18.9(a), in turn, permits an award of attorney fees as a sanction for

filing a frivolous appeal. “An appeal is frivolous if there are no debatable issues on

which reasonable minds might differ and is so totally devoid of merit that there is

no reasonable possibility of reversal.” In re Custody of A.T., 11 Wn. App. 2d 156,

171, 451 P.3d 1132 (2019). “All doubts as to whether the appeal is frivolous should

be resolved in favor of the appellant.” Id. (quoting In re Marriage of Schnurman,

178 Wn. App. 634, 644, 316 P.3d 514 (2013)). Hashman has not demonstrated

that the appeal had no debatable issues on which reasonable minds might differ

and is so totally devoid of merit that there is no reasonable possibility of reversal.

-8- No. 86072-1-I

Because all doubts as to whether an appeal is frivolous should be resolved in favor

of the appellant, we decline to award fees under RAP 18.9.

Affirmed.

WE CONCUR:

-9-