FILED MARCH 11, 2025 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In the Matter of the Marriage of ) ) No. 39451-4-III DEVIN CHRISTOPHER KIENOW, ) ) Appellant ) ) and ) UNPUBLISHED OPINION TERESA A. DITTENTHOLER KIENOW, ) ) Respondent. )
STAAB, J. — This case concerns a post-dissolution dispute between Devin Kienow
and Teresa Dittentholer1 involving two primary issues: Kienow’s alleged failure to pay
his court-ordered share of their children’s private school educational expenses and his
retention of Dittentholer’s phone, which he believes contains evidence relevant to the
children’s custody.
The trial court found Kienow in contempt for failing to pay the educational
expenses and ordered him to return the phone. Kienow appeals this order, and the order
denying revision, raising four main arguments: (1) the trial court lacked jurisdiction or
1 The final dissolution order changed the respondent’s name from Teresa Dittentholer Kienow to Teresa A. Dittentholer. No. 39451-4-III In re Marriage of Kienow
authority to hear the contempt motion, (2) the court erred by failing to preserve potential
criminal evidence on Dittentholer’s phone, (3) Dittentholer abused the ex parte process,
and (4) Dittentholer should be sanctioned for bad faith litigation.
Dittentholer argues that the trial court properly exercised its jurisdiction,
reasonably found Kienow in contempt, and correctly denied his motion to view the
contents of the phone. Dittentholer also opposes Kienow’s request for sanctions,
contending his appeal is frivolous and requesting attorney fees incurred in responding.
We affirm and grant Dittentholer’s request for reasonable attorney fees.
BACKGROUND
Devin Kienow and Teresa Dittentholer were married and have two children. Their
dissolution was finalized on June 15, 2021.
As part of the dissolution, Kienow and Dittentholer were ordered to pay a
proportionate share of the children’s educational expenses. Kienow has not made any
payments toward this expense since March 2021, which were applied to the 2020-21
school year.
In May 2022, Dittentholer allowed her son to use her cell phone, which he
accidentally brought to Kienow’s home without her permission. While searching his
son’s backpack, Kienow found the phone and confiscated it.
When Dittentholer requested the phone’s return, Kienow refused. Instead,
Kienow, who was still represented by an attorney at the time, emailed a “Letter to
2 No. 39451-4-III In re Marriage of Kienow
Preserve Evidence” to Dittentholer’s attorney, claiming the phone contained evidence
that needed to be preserved. Clerk’s Papers (CP) at 186-89. After an exchange of
emails, Kienow emailed Dittentholer’s attorney directly and indicated that he was now
representing himself and could be reached at a certain email address.
On August 17, Dittentholer filed a motion for contempt, seeking enforcement of
Kienow’s obligation to pay his share of the children’s educational expenses and the
return of her phone and the children’s passports. She obtained an order to show cause,
setting a hearing for September 7, 2022.2
Dittentholer served Kienow using several methods. Someone from Dittentholer’s
attorney’s office attempted to serve Kienow with the motion and order sometime before
August 23, leaving copies at his front door. Copies were also mailed to Kienow on
August 31. Dittentholer also hired a process server to personally serve Kienow with the
contempt hearing documents. The process server first tried, unsuccessfully, to serve
Kienow at his home on August 27, noting that it appeared “abandoned.” The process
server commented that there were security cameras by the front door and facing the
driveway, and the court documents were still lying on the doorstep. The process server
spoke to a neighbor the next day, who confirmed that Kienow still lived at the residence.
2 A copy of this order is not included in the record.
3 No. 39451-4-III In re Marriage of Kienow
On August 30, the process server pulled into the children’s school parking lot
behind Kienow, but Kienow drove away quickly in what the process server characterized
as an attempt to avoid being served. The process server walked to the other school
parking lot where Kienow had parked and personally served him with the order to show
cause, the motion for contempt, and Dittentholer’s declaration.
On September 1, Kienow filed a pro se objection to the show cause hearing with
the court. He acknowledged being personally served, denied trying to evade service, and
moved the court to strike the hearing because he was not served at least 14 days before
the hearing.
In response to Kienow’s objection to the timing of the show cause hearing,
Dittentholer obtained an amended order to show cause, moving the hearing to September
15. Dittentholer mailed the amended show cause order to Kienow on September 1, using
the address provided by Kienow.
On September 12, Kienow filed another pro se objection, asking the court to strike
the September 15 hearing, arguing that the court lacked personal jurisdiction because he
was not personally served with the amended order to show cause. Alternatively, he
argued that he still had not received 14-days notice of the new hearing date.
On September 15, Dittentholer sought and obtained an ex parte order allowing her
to serve future documents on Kienow by email, claiming service by email would be as
effective as service by mail and also alleging that Kienow had been evading service. The
4 No. 39451-4-III In re Marriage of Kienow
court found that Kienow was evading service, authorized email service, and renoted the
show cause hearing for September 30. The court also ordered Kienow to immediately
return the phone and Dittentholer’s passport. Dittentholer also requested that the court
impose attorney fees against Kienow for his intransigence.
That same day, Kienow filed an objection to the order authorizing service by
email. He continued to argue that the new order to show cause must be personally served
and asked for sanctions, alleging Dittentholer’s motion to serve by email was made in
bad faith.
Kienow also filed two motions. The first was a “Motion To Vacate” the order
authorizing email service, arguing that Dittentholer should be sanctioned for abusing the
court process by obtaining the order to show cause in ex parte without there being an
emergent need for it. The second was a “Motion for Order of Protection of Evidence,”
requesting the court order Dittentholer to protect the phone’s data from being destroyed
and allow Kienow to view the phone’s contents. In a sealed declaration, he alleged that
the phone contained inappropriate content.
On September 21, Dittentholer filed a second contempt motion, asserting that
Kienow had failed to immediately return her phone and passports as directed by the
court’s September 15 order. Dittentholer also responded to Kienow’s motions.
On September 27, Kienow filed a response to the motion for contempt, arguing
that the court did not have authority to authorize email service and that the court lacked
5 No. 39451-4-III In re Marriage of Kienow
personal jurisdiction over him because he had not been personally served. He
acknowledged receipt of the emailed show cause order on September 15.
At the September 30 show cause hearing, the trial court concluded that it had
personal jurisdiction over Kienow. The court then denied Kienow’s motion to vacate,
finding that Kienow had notice of the motion and hearing and that the court had authority
to waive service rules and authorize alternative service on a case-by-case basis. The
court noted its earlier finding that Kienow was evading service and emphasized that
Kienow had filed pleadings related to the motion and hearing, demonstrating his
knowledge of them.
Turning to the issue of Dittentholer’s phone and passport, the court heard
arguments from both parties. The court ordered Dittentholer not to delete anything from
the phone but directed Kienow to return the phone and passport to Dittentholer’s
attorney.
The court then addressed the motion for contempt. Ultimately, the court found
Kienow in contempt for failing to pay educational expenses, imposed a $100 civil
penalty, and granted attorney fees and costs to Dittentholer, reserving the determination
of the specific amount.
Kienow subsequently filed a motion for revision, arguing, in part, that the
commissioner erred by denying his motion to vacate the order authorizing email service
6 No. 39451-4-III In re Marriage of Kienow
and declining to sanction Dittentholer for her alleged misuse of the ex parte process. The
trial court denied the motion.
Between the time he filed his motion for revision and the trial court’s decision on
that motion, Kienow also filed a motion to view the phone and requested sanctions
against Dittentholer for “destroying evidence.” CP at 197. The trial court eventually
entered an order continuing Kienow’s motion to view the phone’s contents until January
18, 2023. The trial court also found Kienow to be intransigent for evading service,
requiring Dittentholer to move for an order for alternative service, failing to immediately
return the phone after the September 30 hearing, and requiring a new motion for
contempt and hearing to be ordered again.
Kienow timely appealed the orders denying his motion to vacate, finding him in
contempt, and denying his motion for revision.
Post Appeal Procedure
While this appeal was pending, the trial court held a hearing on January 18, 2023,
regarding Kienow’s motion to view the phone’s contents.3 Following the hearing, the
court denied Kienow’s motion, ordering the phone to be released to Dittentholer without
restrictions. The court found that there was no pending action for a modification of the
3 A copy of this hearing transcript is not in the record. We denied Kienow’s motion to supplement the record with this transcript because he did not appeal the order that resulted from this hearing. See Letter Ruling, In re Kienow, No. 39451-4-III (Wash. Ct. App. Jan. 24, 2024).
7 No. 39451-4-III In re Marriage of Kienow
parenting plan to support an order or to allow Kienow to view the phone’s contents.
Kienow did not appeal this order.
During the same hearing, Dittentholer’s attorney filed a new motion for a
contempt hearing against Kienow based, in part, on Kienow’s continued failure to pay his
portion of the children’s educational expenses. The court granted the motion, set a
hearing, and issued an order to show cause. Dittentholer’s attorney personally served
Kienow with the motion and order. Kienow filed a response arguing, in part, that he
could not pay.
Following the second show cause hearing,4 the trial court again found Kienow in
contempt for failing to pay his portion of educational expenses and entered a judgment
detailing the amounts owed and attorney fees. In support of its order, the court found that
Kienow was able, but unwilling, to comply with the orders to pay. The court found that
Kienow “failed to make any payment of the ordered amounts,” failed “to demonstrate
what steps he [took] to address his financial situation,” and that, based on his financial
declaration “he has not shown a lack of ability [to pay].” CP at 208. Kienow did not
appeal this order.
4 A copy of this hearing transcript is not in the record, presumably because the contempt order that resulted from this hearing was not appealed.
8 No. 39451-4-III In re Marriage of Kienow
ANALYSIS
1. MOOTNESS
As a threshold issue, Dittentholer argues that Kienow’s appeal is moot because
Kienow did not appeal the February 2, 2023 contempt order, which stands independent of
the first contempt order. We disagree and conclude that this issue is not moot.
We typically refrain from addressing moot issues. State v. Hunley, 175 Wn.2d
901, 907, 287 P.3d 584 (2012). An issue is moot when we are unable to provide effective
relief. Id.
Although the court entered a subsequent order finding Kienow in contempt for
failing to pay the educational expenses, which Kienow is not appealing, the first order of
contempt included a $100 civil penalty and awarded Dittentholer her attorney fees. Were
we to find in favor of Kienow, we could provide relief in the form of reversing the
imposition of these financial consequences.
2. PERSONAL JURISDICTION
Kienow argues that the trial court erred in determining it had personal jurisdiction
over him. He contends that personal service of all the motion documents was required
each time Dittentholer rescheduled the hearing and the superior court abused its
discretion in authorizing substitute service by email. He requests that we vacate the
contempt orders as void due to lack of jurisdiction.
9 No. 39451-4-III In re Marriage of Kienow
Contrary to Kienow’s assertions, the trial court had personal jurisdiction over him.
A trial court obtains in personam jurisdiction upon the initial service of process, and the
court’s jurisdiction continues through a trial on the merits and through supplemental
proceedings such as a motion for contempt. State v. Ralph Williams’ N. W. Chrysler
Plymouth, Inc., 87 Wn.2d 327, 331-32, 553 P.2d 442 (1976); see also RCW 26.18.040
(The trial court retains jurisdiction over child support enforcement proceedings until the
obligor satisfies his support obligations). While RCW 26.18.050(2) requires an order to
show cause to be personally served on the other party, RCW 26.18.050(5) explicitly
states that jurisdiction is continuing as provided in RCW 26.18.040.
In this case, the trial court obtained personal jurisdiction over Kienow when he
was served with the petition for divorce, and the court retained jurisdiction over Kienow
to enforce the child support order under RCW 26.18.040(3). Because the court retained
jurisdiction over Kienow, his arguments that the court’s orders are void for lack of
jurisdiction fail.5
3. FAILURE TO PERSONALLY SERVE
Beyond the jurisdiction argument, Kienow raises several technical arguments
challenging the sufficiency of service upon him. In evaluating these claims, we keep in
5 Given our conclusion that the trial court had personal jurisdiction over Kienow for the contempt motion, we need not address his additional jurisdictional arguments, including that his appearance at the show cause hearing did not establish jurisdiction and mere notice of the hearing was insufficient.
10 No. 39451-4-III In re Marriage of Kienow
mind the preference to address cases on the merits. See Tacoma Pierce County Small
Bus. Incubator v. Jaguar Sec., Inc., 4 Wn. App. 2d 935, 943, 424 P.3d 1247 (2018).
While service of process is required, the purpose of service is to fulfill the due process
requirements of notice and an opportunity to be heard. Spencer v. Franklin Hills Health-
Spokane, LLC, 3 Wn.3d 165, 170, 548 P.3d 193 (2024). As such, service statutes are “to
be liberally construed . . . ‘to effectuate [this] purpose . . . while adhering to its spirit and
intent.’” Id. (quoting Sheldon v. Fettig, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996)).
Kienow argues that personal service of the order to show cause and supporting
document was required. We agree. RCW 26.18.050(2) mandates that the order to show
cause be served personally or “in the manner provided in the civil rules of superior court
or applicable statute.” Here, Kienow acknowledged that he was personally served with
the first order to show cause and supporting documents. He then filed an objection to the
timing of the hearing with the court. Despite his claim to the contrary, his objection to
the timing of the hearing is not the same as objecting to the manner of service. See
Sammamish Pointe Homeowners Ass'n v. Sammamish Pointe LLC, 116 Wn. App. 117,
120-121, 64 P.3d 656 (2003). Kienow did not claim that the personal service upon him
was defective.
Kienow’s argument implies that RCW 26.18.050(2) requires personal service of
any amended orders to show cause. We disagree. The initial order to show cause was
the “process,” and Kienow was personally served with this process. After being
11 No. 39451-4-III In re Marriage of Kienow
personally served Kienow filed an objection with the court. His response qualified as his
appearance in the matter. RCW 4.28.210. Once Kienow appeared in the action,
opposing counsel could serve any subsequent documents by mail. CR 5(b)(2). Thus, it
was appropriate for Dittentholer’s attorney to mail Kienow notice of the first amended
order to show cause renoting the hearing to September 15.
Kienow next contends that the superior court erred by allowing substitute service
of process by email and disputes the finding that he was evading service. We note that
the court was not authorizing email service in lieu of personal service. At the point in
time when the court authorized email service, Kienow had already been personally served
and had appeared in the action. The court authorized service by email in lieu of service
by mail. Kienow fails to demonstrate that an order authorizing email service in lieu of
mail service under CR 5(b) is an abuse of discretion.
Finally, Kienow argues that service by email was ineffective because the emailed
documents he received did not include all of the documents submitted in support of the
third order to show cause. Specifically, Kienow contends that the email did not include
the motion for contempt or declaration in support of contempt. Kienow does not deny
that he was personally served with these documents on August 30. Instead, he argues
that a hyper-technical reading of the order to show cause statute required Dittentholer to
re-serve all of the supporting documents on him even when these documents did not
12 No. 39451-4-III In re Marriage of Kienow
change. In light of our preference to address cases on the merits and liberally construe
the service statutes, we disagree.
Kienow’s procedural arguments fail. He was personally served with the initial
show cause order and filed his objections with the court, thereby appearing in the action.
He acknowledged receiving notice of the hearing dates and supporting documents in his
various objections, responses, and motions. Kienow also attended the hearing,
demonstrating that he had sufficient notice of the hearing.
4. CONTEMPT FINDING
Kienow argues the trial court erred in finding him in contempt for claiming that
his inability to pay does not constitute intentional disobedience of a court order. We
review a finding of contempt for an abuse of discretion. State ex rel. Shafer v. Bloomer,
94 Wn. App. 246, 250, 973 P.2d 1062 (1999). We will uphold a finding of contempt on
review if we find that the order is supported by a proper basis. State v. Hobble, 126
Wn.2d 283, 292, 892 P.2d 85 (1995).
A trial court is permitted to use a contempt action to enforce a child support
obligation until the obligor satisfies all duties of support. RCW 26.18.050(5). If the
obligor contends at the [show cause] hearing that he or she lacked the means to comply
with the support or maintenance order, the obligor [must] establish that he or she
exercised due diligence in seeking employment, in conserving assets, or otherwise in
rendering himself or herself able to comply with the court’s order.” RCW 26.18.050(4).
13 No. 39451-4-III In re Marriage of Kienow
In this case, the trial court did not abuse its discretion in finding Kienow in
contempt for “failing to pay his proportionate share of school costs.” CP at 87. During
the contempt hearing, Kienow’s only argument was that he did not have the money to
pay. He offered no evidence or argument to show that he exercised due diligence in
seeking employment, in conserving assets, or otherwise in rendering himself able to
comply with the court’s order to pay. Thus, the trial court’s decision to find him in
contempt for failure to pay his share of the children’s educational expenses was
supported by RCW 26.18.050 (4), (5) and was, therefore not an abuse of discretion.
Kienow’s argument that his inability to pay does not rise to the level of intentional
disobedience of a court order is also without merit. As discussed above, a court is
permitted to find a party in contempt for failing to pay his child support obligations based
on an inability to pay unless the party establishes that they exercised due diligence in
seeking employment, in conserving assets, or otherwise in rendering themselves able to
comply with the court’s order. RCW 26.18.050(4). Because Kienow failed to show such
diligence, the contempt finding was not an abuse of discretion.
5. PROTECTIVE ORDER
Kienow argues the trial court should have kept the protective order for the phone
in place and should not have ordered the phone be returned to Dittentholer. Dittentholer
contends that we should decline review of this issue because Kienow failed to appeal the
order denying his motion to view the phone’s contents. We agree with Dittenholer.
14 No. 39451-4-III In re Marriage of Kienow
A. Additional Facts
At the September 30, 2022 hearing, the court ordered Dittentholer not to delete
anything from the phone, but also ordered Kienow to return the phone. The court’s order
allowed Kienow 45 days to request to view certain information on the phone. On
November 14, 2022, Kienow moved the trial court for an order allowing him to view the
phone’s contents. Following a hearing on January 18, 2023,6 the trial court denied
Kienow’s motion, reasoning that there was no pending petition for modification or
adequate cause order to justify granting the motion. The court also ordered the phone,
which had been held in a safe at Dittentholer’s attorney’s office, be released to
Dittentholer.
B. Analysis
Dittentholer argues that we should dismiss this claim because Kienow did not
appeal the order denying his motion and releasing the phone. We agree.
Kienow failed to amend his notice of appeal to include the order releasing the
phone to Dittentholer. As such, this issue is not properly before this court for review.
6 Kienow cites to the transcript from this hearing to support this argument. However, we specifically denied Kienow’s motion to supplement the record with the transcript of this hearing. See Letter Ruling, In re Kienow, No. 39451-4-III (Wash. Ct. App. Jan. 24, 2024).
15 No. 39451-4-III In re Marriage of Kienow
See RAP 5.3(a)(3) (The notice of appeal must designate the decision that the party wants
the court to review). Accordingly, we decline review of this issue.
Moreover, this issue is essentially moot because we cannot provide effective
relief. Hunley, 175 Wn.2d at 907. Kienow cites to no authority that would permit us to
order Dittentholer to turn over the phone so that he could review its contents. Kienow
acknowledges, in his brief, that he could find no authority on this issue.
Last, Kienow’s argument that Dittentholer’s failure to preserve evidence should
give rise to the legal presumption that the evidence would be harmful to her case is
without merit. Kienow argued that the alleged felony evidence he viewed on the phone
would be relevant to a modification of the parenting plan. However, Kienow never filed
any action to modify the parenting plan, as the trial court recognized in its order denying
Kienow’s motion to view the contents of the phone.
6. DITTENHOLER’S USE OF EX PARTE
Kienow argues Dittentholer abused the ex parte process and that the trial court
should have rejected Dittentholer’s request for an order requiring Kienow to return her
phone. He contends that the motion was not an emergency and that ex parte proceedings
should not be used to “adjudicate[ ] property.” Br. of Appellant at 41-45. In response,
Dittentholer asserts that the ex parte process was authorized by statute to initiate
contempt proceedings and that the trial court addressed ownership of the phone during
16 No. 39451-4-III In re Marriage of Kienow
the September 30 hearing, where Kienow was present and had an opportunity to argue.
We agree with Dittentholer.
First, Kienow provides no legal authority to support his claim that ex parte
proceedings are reserved solely for emergencies. Nevertheless, RCW 26.18.050(1)
explicitly allows a party to use the ex parte process to obtain a show cause order, which is
exactly what Dittentholer did here.
Second, contrary to Kienow’s argument, the trial court did not improperly
“adjudicate[ ] property” at the ex parte hearing. Rather, the court resolved the issue of
phone ownership during the September 30 show cause hearing based on the parties’
arguments and briefing. Kienow was present at the hearing, submitted briefing, and
argued his position, meaning he was afforded due process.
Finally, this issue is moot because there is no relief that this court could grant
Kienow. See Hunley, 175 Wn.2d at 907. Since Kienow failed to appeal the trial court’s
later order requiring him to return the phone to Dittentholer, we cannot disturb that
ruling.
7. BAD FAITH LITIGATION CONDUCT
Kienow challenges the trial court’s refusal to find that Dittentholer engaged in bad
faith litigation conduct. He requests sanctions against Dittentholer for alleged bad faith
conduct, seeking an award of appellate costs under RAP 18.1 and RCW 26.09.140.
17 No. 39451-4-III In re Marriage of Kienow
Dittentholer argues that the trial court acted within its discretion in declining to sanction
her and urges us to deny Kienow’s request for attorney fees. We agree with Dittentholer.
Kienow requested the trial court impose CR 11 sanctions against Dittentholer in
his motion to vacate the order authorizing email service. He argued that Dittentholer
should be sanctioned for abusing the court process by obtaining the show cause order in
ex parte without there being an emergent need for it, for being “untruthful” about his
evasion of service, and for Dittentholer’s attorney’s failure to know that email service
was improper. During the hearing on the motion, Kienow reiterated these same
arguments in support of his sanctions request. The trial court ultimately denied Kienow’s
motion to vacate the email service order but did not explicitly address his request for CR
11 sanctions.
B. The Trial Court’s Decision to Deny Kienow’s Motion for CR 11 Sanctions
Kienow assigns error to the trial court’s failure to find that Dittentholer engaged in
bad faith litigation conduct. We conclude that the trial court did not abuse its discretion
when it denied his motion for CR 11 sanctions.
We review a trial court’s ruling on a motion for CR 11 sanctions for an abuse of
discretion. Watness v. City of Seattle, 11 Wn. App. 2d 722, 735, 457 P.3d 1177 (2019).
“The trial court abuses its discretion where its conclusion was the result of an exercise of
discretion that was manifestly unreasonable or based on untenable grounds or reasons.”
18 No. 39451-4-III In re Marriage of Kienow
Id. at 736. We can affirm a trial court’s sanctions award on any basis supported by the
evidence. Id.
The trial court’s decision to not sanction Dittentholer was not manifestly
unreasonable. As discussed above, it was not error for the trial court to conclude that it
had jurisdiction over Kienow for the contempt proceedings. Moreover, Kienow fails to
show that Dittentholer abused the ex parte process as the contempt statute specifically
contemplates the use of ex parte. RCW 26.18.050(1). And, although not the subject of
this appeal, the trial court later made explicit findings that Kienow was intransigent for
his actions related to these contempt proceedings for causing Dittentholer to have to bring
a motion for alternative service, for failing to return the phone, and for requiring a new
contempt motion. Therefore, it was tenable for the trial court to deny Kienow’s motion
for CR 11 sanctions against Dittentholer.
Kienow argues that Dittentholer’s requests for “past due” tuition before the school
year started and for her passport amounted to sanctionable bad faith. However, Kienow
failed to raise these issues in the trial court to allow the trial court to correct any potential
errors or develop a record on them. Accordingly, we decline to review these arguments.
RAP 2.5(a).
Kienow contends Dittentholer acted in bad faith by attempting to modify child
support obligations without complying with the modification statutes. This argument
fails. Dittentholer commenced contempt proceedings based on Kienow’s failure to
19 No. 39451-4-III In re Marriage of Kienow
comply with the child support order and pay his portion of the children’s educational
expenses. Contempt proceedings to enforce a child support obligation are different than a
petition to modify a child support order. Compare RCW 26.09.175 with RCW 26.18.050.
C. Kienow’s Request for Appellate Costs
Kienow requests that we sanction Dittentholer and her attorney by awarding him
his appellate costs under RAP 18.1 and RCW 26.09.140.7 For the same reasons we
conclude that the trial court did not abuse its discretion in declining to sanction
Dittentholer. We deny Kienow’s request for his costs on appeal.
8. DITTENTHOLER’S REQUEST FOR ATTORNEY FEES ON APPEAL
Dittentholer requests we award her appellate attorney fees for having to respond to
a frivolous appeal. We grant her request.
RAP 18.9(a) authorizes this court, on its own initiative or on motion of a party, to
order a party or counsel “who files a frivolous appeal . . . to pay terms or compensatory
damages to any other party who has been harmed by the delay or the failure to comply or
to pay sanctions to the court.” “Appropriate sanctions may include . . . compensatory
damages, [or] an award of attorney fees and costs [on appeal] to the opposing party.”
Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008).
7 In dissolution proceedings, this court may, “in its discretion, order a party to pay for the cost to the other party of maintaining the appeal.” RCW 26.09.140.
20 No. 39451-4-III In re Marriage of Kienow
An appeal is considered frivolous if, after examining the entire record, we
determine that it “presents no debatable issues upon which reasonable minds might
differ” and is “so devoid of merit that there is no possibility of reversal.” Advocs. for
Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd., 170 Wn.2d 577, 580, 245 P.3d
764 (2010).
Here, all of Kienow’s arguments lack substantive merit. Given that his appeal
raises no debatable issues and presents no possibility of reversal, we conclude that it is
frivolous. Accordingly, we grant Dittentholer’s request for appellate attorney fees under
RAP 18.9(a).
Affirmed.
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.
_________________________________ Staab, J. WE CONCUR:
_________________________________ Fearing, J.
_________________________________ Lawrence-Berrey, C.J.