IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: No. 86760-1 KATHERINE DAWN THOMAS, DIVISION ONE Respondent, UNPUBLISHED OPINION and
GEOFFREY BRYAN THOMAS,
Appellant.
COBURN, J. — Geoffrey Thomas, representing himself on appeal,
challenges the order of the superior court enforcing certain terms of a previously
entered and unchallenged final divorce decree. Thomas asserts that the superior
court’s determination of the value and division of certain disputed household
fixtures and large appliances modified the property division set forth in the
decree. We disagree. Thomas also asserts that the court had no basis to award
Katherine Brown 1 attorney fees and that the amount awarded was not
reasonable. Although the superior court did not err in determining that Thomas
was intransigent and awarding attorney fees, the superior court, based on the
record before us, did not address Thomas’s objections to the reasonableness of
1 For clarity, we refer to the Respondent as Brown, her last name at the time of this decision’s publication. No. 86760-1/2
the attorney fee award and failed to enter any findings supporting the fee award
other than a general conclusory finding that the fees are reasonable. Accordingly,
we affirm in part, reverse in part and remand for the trial court to adequately
address Thomas’ objections to the reasonableness of Brown’s requested
attorney fees and costs. 2
FACTS
The matter before us involves the enforcement of a dissolution decree
entered following a bench trial in 2023. That decree was not appealed.
Following a bench trial, the court awarded Brown sole ownership of her
pre-marital property in Woodinville as her separate property, which included a
residence thereon, less a real property award of $85,904 identified as “sweat
equity” comprised of Thomas’s “separate pre-marital contribution to the
Woodinville home.” The decree also awarded to Brown personal property
described as “all possessions currently in her possession” and awarded to
Thomas personal property described as “all possessions currently in his
possession.” 3 And in its final paragraph, the decree ordered Thomas to vacate
the Woodinville property within 60 days. 4
2 Thomas raises other challenges on appeal. None merit appellate relief as discussed below. 3 The decree also awarded each personal property as listed in “Exhibit A&L” as their separate property. This exhibit does not specifically list any of the disputed items in this matter as “separate property.” 4 Later, when Brown moved to enforce the decree, Brown’s counsel in discussing past events, referenced that “[Thomas] unilaterally moved into the separate property home of [Brown] during the divorce,” and that the superior court had previously ordered Thomas to move out the Woodinville home and granted Brown an award of attorney fees for that proceeding. Although we do not have the transcript from the dissolution trial or a subsequent proceeding that generated an award of attorney fees different than the one
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Thomas later vacated the Woodinville residence. In so doing, however, he
removed—and did not replace—several of the residence’s fixtures and several of
its major appliances, including the kitchen’s refrigerator and the washer and
dryer.
Brown later filed a motion for hearing for contempt or, in the alternative,
enforcement of the property division set forth in the decree, requesting the
replacement value of those appliances and fixtures removed by Thomas. These
items and their values, as described in her motion and as supported by
accompanying exhibits, included the following:
• The refrigerator – Exhibit C, Receipt; Exhibit D, Photo of it missing. • The washer and dryer – Exhibit E, Receipt; Exhibit F, Photo of them missing. A utility sink and cabinet was also removed. • Miniature fridge/fridge drawers (there is nothing else that could reasonably occupy this odd space) – Exhibit G, Receipt; Exhibit H, Photo of it missing. • Downstairs light fixture – Exhibit I, Photo of missing light fixture. • Two built-in bookshelves (there is not even installed carpet where they used to be) – Exhibit J, Receipt; Exhibit K, Photo of them missing. • The mirrors in the master bathroom – Exhibit L, Receipt; Exhibit M, Photo of them missing. • An entire sink/vanity from the downstairs bathroom (this same sink was already litigated at trial and Respondent was already given some sweat equity for its installation) – Exhibit N, Photo of it missing.
(Boldface omitted.) Brown also requested an award of attorney fees on the basis
that Thomas’s intransigence necessitated the filing of her motion for
before us in the instant case, we note that Thomas did not dispute these assertions at the February 2024 decree enforcement hearing.
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enforcement. Brown’s attorney later filed a declaration requesting an attorney fee
award of $7,075.50 with corresponding logs of services rendered.
Following a hearing in February 2024, a superior court commissioner
considered Brown’s request only as a motion for enforcement of the decree. The
commissioner determined that the disputed appliances and fixtures had been
awarded to Brown as part of the final divorce decree, that replacement value was
a reasonable measure of her damages, that her proposed valuations were
reasonable, and that Thomas had not proposed alternate valuations. The
commissioner therefore ordered Thomas to pay Brown a sum of $13,949.89,
which the commissioner determined was the replacement value for the missing
appliances and fixtures. The commissioner also determined that Thomas’s
conduct regarding removing fixtures and a certain appliance constituted
intransigence and granted Brown’s request for an attorney fee award of $7,075. 5
In approving of the amount of fees, but without making additional findings, the
commissioner stated that “[t]he court concludes that the fees requested are
reasonable under the circumstances.”
Thomas thereafter filed a motion for revision of the commissioner’s order,
challenging the commissioner’s determinations regarding the disputed items’
division and valuation and challenging the attorney fee award. In May 2024, the
superior court entered an order denying the motion for revision and adopting the
5 The attorney fee award requested by Brown was $7,075.50. The commissioner awarded her $7,075.00, a sum 50 cents less than that which she requested. The commissioner’s order reflects an intent to grant Brown’s award as requested but does not explain this discrepancy. Therefore, for the purpose of our decision, we treat this as a scrivener’s error and conclude that the court intended to award the sum that Brown requested.
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commissioner’s reasoning and ruling. In so doing, the court did not remand the
matter back to the commissioner to enter further findings.
Thomas timely appeals.
DISCUSSION
Preliminarily, we note that Thomas represents himself on appeal. We hold
self-represented litigants to the same standards as licensed attorneys and expect
them to follow the rules of appellate procedure. In re Marriage of Olson, 69 Wn.
App. 621, 626, 850 P.2d 527 (1993). “The scope of a given appeal is determined
by the notice of appeal, the assignments of error, and the substantive
argumentation of the parties.” Clark County v. W. Wash. Growth Mgmt. Hearings
Rev. Bd., 177 Wn.2d 136, 144, 298 P.3d 704 (2013) (citing RAP 5.3(a); RAP
10.3(a), (g); RAP 12.1)).
Accordingly, the following principles of appellate review inform our
analysis in part. First, RAP 10.3(g) requires
[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. The appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.
See also In re Marriage of Drlik, 121 Wn. App. 269, 275, 87 P.3d 1192 (2004).
Additionally, the party assigning error on appeal has the burden of perfecting the
record so that the court has before it all the evidence relevant to the issue raised
on appeal. RAP 9.2, 9.6; In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d
1266 (1990). Moreover, that party must provide “argument in support of the
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issues presented for review, together with citations to legal authority and
references to relevant parts of the record.” RAP 10.3(a)(6).
We need not consider arguments unsupported by references to the
record, meaningful analysis, or citation to pertinent authority. Norcon Builders,
LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011). And
we are not obligated to search the appellate record to find evidence in support of
a party’s assertion. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,
819, 828 P.2d 549 (1992).
Thomas assigns error to findings of fact set forth in the superior court’s
order on enforcement. However, he does not separately assign error to any of
these findings nor does he reference the challenged findings by number, as
required by RAP 10.3(g). Furthermore, he alleges many facts not in the record
before us and he provides few, if any, citations to legal authority as required by
RAP 10.3(a)(6). Despite these deficiencies, where Thomas sufficiently
challenges a finding of fact in the argument set forth in his briefing, where the trial
court’s finding is inherent to the basis for its enforcement order, and to the extent
allowed by the record designated on appeal, we exercise our discretion to
address his assignments of error as discussed below. See RAP 1.2(a), (c); Fox
v. Sackman, 22 Wn. App. 707, 709, 591 P.2d 855 (1979).
Challenge to Order on Enforcement
Thomas asserts that the superior court, by denying his motion for revision,
erred in adopting the commissioner’s determinations regarding the property
division and valuation set forth in the order on enforcement. We disagree.
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We have stated that
[o]n a revision motion, a trial court reviews a commissioner’s ruling de novo based on the evidence and issues presented to the commissioner. RCW 26.12.215; RCW 2.24.050; In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). When an appeal is taken from an order denying revision of a court commissioner’s decision, we review the superior court’s decision, not the commissioner’s. In re Estate of Wright, 147 Wn. App. 674, 680, 196 P.3d 1075 (2008).
In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). “We
review challenged findings of fact for substantial evidence and the conclusions of
law de novo.” In re Guardianship of Knutson, 160 Wn. App. 854, 863, 250 P.3d
1072 (2011) (citing In re Marriage of Dodd, 120 Wn. App. 638, 643, 86 P.3d 801
(2004)). Here, the superior court, in denying Thomas’s motion for revision,
indicated that it “agrees with and adopts the Commissioner’s reasoning and
rulings,” thus implicitly adopting the commissioner’s findings of fact and
conclusions of law. For this reason, we herein refer to the findings and
conclusions set forth in the commissioner’s decision, notwithstanding that we
review the decision of the superior court.
A. Disputed Items’ Ownership
Thomas first contends that the superior court erred by ordering him to pay
Brown for the value of the disputed items because, according to him, those items
did not form part of the Woodinville home awarded to her in the final divorce
decree. Although not expressly characterized by him as such, Thomas is
asserting that the enforcement order impermissibly modified the property division
in the dissolution decree. Thomas is incorrect.
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Our Supreme Court has long-recognized that the superior court has broad
equitable authority to enforce a property disposition set forth in a dissolution
decree:
It is inconceivable that a court in a divorce proceeding can divide the property between the parties and yet have no power to make that division effective if the parties are recalcitrant. ... “To the extent that the court has the power to adjust the property rights of the parties, it can require that its mandates be carried out, either by act of the party or by directing the making of a conveyance by a representative of the court if the party fails or refuses to make it. This is a generally recognized power of a court invested with authority to deal with property rights and interests. It is commonly exercised to effectuate transfer of interests if the parties are recalcitrant; thence there is nothing peculiar to divorce litigation in its application, where necessary, to carry out what the court is empowered to do by way of adjustment of rights and interests.”
Robinson v. Robinson, 37 Wn.2d 511, 516, 225 P.2d 411 (1950) (quoting 2
WILLIAM T. NELSON, NELSON ON DIVORCE AND ANNULMENT § 16.01, at 285 (2d ed.
1945)). Related to this broad authority, the superior court can enforce a decree of
dissolution so long as it does not modify the decree. 6 See, e.g., In re Marriage of
Thompson, 97 Wn. App. 873, 878-79, 988 P.2d 499 (1999). A decree is modified
when the rights given to one party are either extended beyond or reduced from
the scope originally intended by the decree. Rivard v. Rivard, 75 Wn.2d 415, 418,
451 P.2d 677 (1969); Thompson, 97 Wn. App. at 878.
The interpretation of a dissolution decree presents a legal question that
we review de novo. Thompson, 97 Wn. App. at 877. When a decree is
unambiguous, there is nothing for us to interpret. But if it is ambiguous, we apply
6 RCW 26.09.170(1) prohibits modification of a dissolution decree in the absence of conditions that justify reopening of the judgment.
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the general rules of construction applicable to statutes, contracts, and other
writings to determine the intent of the court that entered the decree. Id. at 878.
The dissolution decree unambiguously reflects that, in awarding Brown the
Woodinville property as her separate property, the court intended to award her
the household fixtures and large appliances that were associated with the house
and that were not otherwise listed as Thomas’s separate personal property on
Exhibit A&L.
The fixtures and large appliances now currently in dispute were situated
inside of the Woodinville residence at the time of the decree’s entry. On appeal,
Thomas does not meaningfully dispute or contest that it is reasonable to infer
that the items in question—a refrigerator, a washer and dryer, a utility sink and
cabinet, a miniature refrigerator and drawers, a light fixture, built-in bookshelves,
mirrors, and a vanity sink—are items that can be considered as part of a house.
This is especially true when the court did not list these items on Exhibit A&L as
Thomas’s separate personal property while simultaneously awarding Brown the
residence and ordering Thomas to vacate the residence.
Therefore, to the extent that, prior to the entry of the decree, any of the
disputed items could have once been considered in Thomas’s possession, the
entry of the divorce decree extinguished his interest in those items and awarded
the interest therein to Brown.
Bolstering this interpretation is the court’s “sweat equity” award to
Thomas. The “sweat equity” award suggests that the court found that Thomas
had made certain investments in the home and correspondingly awarded him the
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equitable value of his “sweat equity.” It reasonably follows that the court intended
to grant to Brown the possession of the real estate and intended to grant to
Thomas the value of, not possession of, his contributions to the property.
Therefore, to the extent that any of the disputed items could be understood as
Thomas’s possessions prior to their marriage, the entry of the divorce decree
extinguished his interest in that property and awarded such interest to Brown.
Therefore, the court’s decree unambiguously awarded the disputed items to
Brown.
Thomas nevertheless proposes an alternative interpretation of the decree:
that, because he was residing in the house before the decree was entered and
because the decree set forth that he “shall be entitled to all possessions currently
in his possession,” he was the rightful possessor of the disputed items that he
removed from the house. This argument is unpersuasive.
First, whether he was residing in the home prior to the entry of the decree
is immaterial to the court’s intention underlying its property division. As discussed
above, the court awarded ownership of the house to Brown at the time of the
decree’s entry and ordered him to vacate the premises. It is similarly immaterial
to the court’s intended property division whether he may have been “in
possession” of the disputed items prior to the entry of the decree by the mere fact
of his residing in the home or of his use of those items. Once the decree was
entered, he no longer had a reasonable expectation of ownership over those
things reasonably associated with the house.
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To be sure, the court contemplated that Thomas may have had certain
personal property in his possession at the time the decree was entered and,
accordingly, awarded him such property that was in his possession. However,
possessing his personal clothing, for example, is far different than possessing
items that were more closely associated with the actual house than the person in
the house. Indeed, the court issued to Brown an identical award entitling her to
the items currently in her possession, and, following Thomas’s logic, this would
include all items reasonably included in her residence. Once again, whether
Thomas was “in possession” of the disputed items prior to the entry of the decree
is immaterial. Upon the decree’s entry, the Woodinville home—and everything
reasonably included within as much—was awarded to Brown.
Therefore, the order on enforcement determining that Brown was the
owner of the disputed items did not extend or reduce the scope of the property
award to the parties and, thus, did not modify the decree. Rather, the order
merely enforced the property division unambiguously reflected in the decree.
Accordingly, the superior court did not err by entering the order on enforcement
in this matter. 7
7 Thomas nevertheless analogizes the superior court’s equitable property division awarding Brown her Woodinville residence as her separate property to a private sale of real property from one party to another. Thomas is mistaken. He does not present any argument or analysis based in the language of the decree that the court intended to rely on administrative codes, standardized real estate purchase and sale agreements, or appraisals of the home. Rather, the court, in reaching a “just and equitable” property allocation, noted that “[t]he Parties provided the valuations in [Exhibit A&L] in the presentation of proposed orders. The Court deems those particular valuations reasonable but is not strictly relying on them for its allocation, as opposed to the evidence presented and the respective positions of the Parties at trial.” (Emphasis added.) Thus, Thomas’s claim fails.
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B. Disputed Items’ Valuation
Brown next contends that the superior court erred in its determination of
the value of the disputed items. We disagree.
Paragraph 15 of the enforcement order reads as follows:
[Brown] provided evidence of the value of the items taken by Mr. Thomas. That total is $13,949.89. While Mr. Thomas argues that these items were used and [Brown] is asking for replac[e]ment value, he proffers no alternate values and [Brown] is going to have to replace these items. The court finds the values to be reasonable.
Substantial evidence supports this finding. Brown’s motion and the
exhibits attached thereto setting forth the value of the disputed items, along with
her declaration, together support the court’s determination. Furthermore, Thomas
does not dispute the accuracy of her exhibits or declaration, does not present
persuasive argument or legal authority in support of the proposition that the court
erred by relying on the items’ replacement value, and does not dispute the
court’s finding that he did not bring alternate values to the court’s attention.
Nevertheless, Thomas asserts that substantial evidence does not support
this finding because other measurements are, according to Thomas, “more
accurate” or the “actual replacement cost.” In so asserting, however, he does not
provide citation to the appellate record. We do not consider assertions
unsupported by citation to the record. Norcon Builders, 161 Wn. App. at 486.
Furthermore, even if he had cited to evidence in the record, the existence of
evidence in support of a contrary finding does not, by itself, establish that the
challenged finding is not supported by substantial evidence. Thus, the court did
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not err by entering the finding in question. 8 Accordingly, Thomas’s challenge
fails. 9
Motion on Revision
Thomas next asserts that the superior court erred in denying his motion on
revision because the court’s ruling was based on arguments that were not
presented to the commissioner. For several reasons, Thomas is mistaken.
“‘Generally, a superior court judge’s review of a court commissioner’s
ruling, pursuant to a motion for revision, is limited to the evidence and issues
presented to the commissioner.’” Goodell v. Goodell, 130 Wn. App. 381, 389,
122 P.3d 929 (2005) (quoting Moody, 137 Wn.2d at 992-93); see also In re
Marriage of Balcom, 101 Wn. App. 56, 59, 1 P.3d 1174 (2000).
Here, the order in question stated, in pertinent part, as follows:
The Court is denying revision. The Court agrees with and adopts the Commissioner’s reasoning and rulings, see Dkt. 464. As one additional observation, the Court also notes that the purchase records Petitioner Brown has submitted show that Petitioner’s sister
Thomas also relies on our decision in Burrill v. Burrill, 113 Wn. App. 863, 874, 8
56 P.3d 993 (2002), to support his claim that the items that he took were not part of the Woodinville residence because, according to him, Burrill stands for the proposition that, when a home is awarded in a dissolution action, the only consideration is whether the home was in an inhabitable condition. However, in that case, we held that not only was it “fair to conclude that the award of the home implied that it be left in a habitable condition” but also that “the trial court fairly concluded that the award of the home . . . included the appliances.” Burrill, 113 Wn. App. at 874. Thus, habitability is not the only consideration. Accordingly, his reliance on Burrill is unavailing. 9 We note that the superior court—as well as the parties on appeal—appears to have relied on certain statements by the court made in explaining its order denying Brown’s second motion for clarification. This order was not appealed and is not properly before us. Moreover, because the court denied that motion, we consider the statements therein not as facts found by the court, but rather, as reasoning in support of the clarification order in question. Furthermore, because we may affirm a decision of the superior court on any basis supported by the record, we need not and do not rely on those statements in our decision in this matter. Rather, we need only rely on the unambiguous language of the decree itself.
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purchased the key appliances in dispute, for [Brown]. See Dkt. 428 at 23, 29; see also Dkt. 332 at 6. This only adds to the strength of [Brown]’s position and the overall unreasonableness of [Thomas]’s actions in this instance.
The superior court did not err. First, the evidence in question was not new:
the superior court indicated that it relied on “purchase records” in making its
determination, and it is undisputed that Brown presented those records—two
receipts—to the commissioner as exhibits to her motion for enforcement.
Furthermore, the issue in question—whether key appliances that were in dispute
were awarded to Brown or to Thomas as part of the final divorce decree—was
considered by and ruled on during the proceeding on Brown’s motion for
enforcement. Therefore, the evidence and issue that the superior court
considered were the same as those presented to the commissioner. The court
did not err by making observations from the evidence and record before the
commissioner. 10 Accordingly, Thomas’s claim fails.
Allegations of Due Process Violations
Thomas also asserts that he was deprived of his constitutional right to a
fair trial for two reasons: (1) the commissioner in a temporary restraining order
proceeding, who was the same commissioner who heard Brown’s motion for
enforcement, exhibited bias against him during the restraining order proceeding;
and (2) the superior court judge who presided over the marital dissolution
10 Additionally, even if the evidence or issue relied on by the court were not part of the record before the commissioner, the language of the court’s order clearly reflects that its additional consideration was not essential to its ruling: the court’s use “as one additional observation,” “also,” and “adds to” reflects the court was supplementing its ruling, rather than basing its ruling on those phrases. Therefore, any error (of which there were none) would be harmless.
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proceedings did not give him “adequate time to fully present his case, cross-
examine adverse witnesses, or provide a complete defense throughout the
proceedings, including at trial.”
Thomas asserts that the bias exhibited from the commissioner in a prior
unrelated hearing continued to the hearing on the motion to enforce the decree,
and that, had he been provided a fair dissolution trial, the outcome of his motion
on revision would have changed.
The due process clause of the state and federal constitutions protects an
individual’s right to a fair trial, which includes the right to have one’s case
presided over by a judge free from actual or potential bias. In re Murchison, 349
U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955); U.S. Const. amend. XIV;
Wash. Const. art. I, § 3.
However, Thomas does not cite to the record for instances of how the
commissioner demonstrated bias in the hearing related to the order that is
subject to this appeal. He, instead, bases his due process claims on what
occurred in past hearings that resulted in orders that he did not appeal. What
occurred during the hearing for the temporary restraining order and the
dissolution trial are not properly before us. Even so, Thomas contends that the
commissioner’s bias continued from prior hearings through the hearing on
Brown’s motion for enforcement and that the bias from his dissolution trial
“tainted the fairness of the entire proceedings and set a prejudicial tone that has
persisted throughout this case.”
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To the extent that Thomas attempts to connect his allegations of judicial
bias during the dissolution trial to the superior court’s consideration of his motion
for revision, he fails to provide any citation to the record in support of this
conclusory allegation. We do not consider assertions unsupported by adequate
facts. Cowiche Canyon, 118 Wn.2d at 819. Moreover, the evidence that Thomas
relies on in support of his assertion that his due process rights were violated is
the fact that the commissioner ruled against him. 11 However, it is well-established
that a judicial ruling, by itself, does not establish judicial bias. In re Pers.
Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004) (“Judicial rulings
alone almost never constitute a valid showing of bias.” (citing Liteky v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994))).
Thomas’s due process claim is actually an attempt to relitigate the hearing
on temporary restraining order and the dissolution trial. However, he did not
timely appeal following those hearings and related orders, which are now binding
against him. 12 Accordingly, we do not consider his claims.
11 Thomas also relies on the tone of the commissioner’s voice during the audio recording of the hearing in question. However, he has not designated that recording for our consideration on appeal. Haugh, 58 Wn. App. at 6; RAP 9.6. Therefore, he has not carried his burden as to this claim. 12 Thomas also generally asserts, without citation to the record, argument, or decisional authority, that family courts in this state are biased against fathers, that he was deprived of the Sixth Amendment right for criminal defendants to confront their accusers, and that certain legal principles governing the exclusion of improperly obtained evidence uncovered during a criminal investigation apply to the matter before us. We do not consider assertions unsupported by adequate facts, reasoning, or legal authority. Cowiche Canyon, 118 Wn.2d at 819. Thus, Thomas’s assertions fail.
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Award of Attorney Fees in Order on Enforcement
Thomas next asserts that the superior court erred by granting Brown’s
request for an award of attorney fees. We disagree in part and agree in part.
“[a]n appellate court will uphold an attorney fee award unless it finds the trial court manifestly abused its discretion. Discretion is abused when the trial court exercises it on untenable grounds or for untenable reasons. Chuong Van Pham v. City of Seattle, 159 Wn.2d 527, 538, 151 P.3d 976 (2007). The burden of demonstrating that a fee is reasonable is upon the fee applicant. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 151, 859 P.2d 1210 (1993).”
View Ridge Ests. Homeowners Ass’n v. Guetter, 30 Wn. App. 2d 612, 646-47,
546 P.3d 463, review denied, 554 P.3d 1225 (2024) (quoting Berryman v.
Metcalf, 177 Wn. App. 644, 656-57, 312 P.3d 745 (2013)).
A. Intransigence Finding
Thomas first contends that the superior court erred by determining that an
award of attorney fees was warranted due to his intransigence during the decree
enforcement proceedings. We disagree.
In a dissolution proceeding, a party’s intransigence provides an equitable
basis for which a trial court may award attorney fees. In re Marriage of Chandola,
180 Wn.2d 632, 656, 327 P.3d 644 (2014). “Determining intransigence is
necessarily factual, but may involve foot-dragging, obstructing, filing unnecessary
or frivolous motions, refusing to cooperate with the opposing party,
noncompliance with discovery requests, and any other conduct that makes the
proceeding unduly difficult or costly.” Wixom v. Wixom, 190 Wn. App. 719, 725,
360 P.3d 960 (2015) (emphasis added).
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During the hearing on Brown’s motion for enforcement, Thomas
maintained that, when he took the disputed items in reliance on a property
appraisal that he obtained, he was acting on the advice of his attorney at the
time. 13 The record does not reflect that Thomas, or his former attorney, filed a
declaration with the superior court swearing under penalty of perjury that the
items in question were removed in reliance on the advice of legal counsel.
In regards to the appraisal, the record indicates that Thomas obtained and
submitted the appraisal to the court during the dissolution trial as an exhibit.
According to Thomas, this appraisal conclusively identified which property was
his personal property for the purpose of interpreting the court’s later-issued final
dissolution decree. 14
At the decree enforcement hearing, the commissioner sua sponte located
the exhibit from the dissolution proceeding, displayed it for the parties, and
considered it for the purpose of responding to Thomas’s arguments during the
hearing. The commissioner found that the appraisal identified the refrigerator,
washer, and dryer as his personal property. However, the fact that Thomas may
have submitted the appraisal to the trial court during the dissolution hearing does
not establish that the court agreed that the refrigerator, washer, and dryer should
be distributed as Thomas’s personal property. Had the court agreed that the
refrigerator, washer, and dryer were Thomas’s personal property during the
13 Thomas did not designate the appraisal in the clerk’s papers for this appeal. 14 Thomas did not designate the verbatim report of proceedings from the dissolution trial.
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dissolution trial, the court could have listed them as such on Exhibit A&L as
Thomas’s personal property. It did not.
With regard to the remaining disputed items that Thomas removed from
the residence, the commissioner determined, and Thomas conceded, that none
of those items were even identified in the appraisal as his personal property.
The resulting order on enforcement read, in pertinent part, as follows:
Ms. [Brown] also asks the court to award her $7,075 in attorney fees. The court is required to determine if the fees are reasonable under the circumstances for the work and time put in by counsel. This is a particularly nasty matter and Mr. Thomas’ behavior, particular[l]y with the items other than the refrigerator and washer/dryer is so outrageous, an award of fees is warranted.
As discussed above, the superior court adopted the resulting order.
The superior court did not err in its intransigence determination. Although
the court does not mention intransigence by name, it is evident that the court
determined that Thomas was intransigent based on his conduct during the
decree enforcement proceedings. Indeed, the commissioner highlighted the
removal of items other than the refrigerator and washer/dryer—which included
house fixtures. The record reflects his concession that, as for many of the
disputed items, his reliance on that exhibit to justify his removal of the remaining
disputed items was unavailing. Accordingly, the court did not err in determining
that an award of attorney fees to Brown was warranted for Thomas’s outrageous
conduct that, without question, was obstructing and refusing to cooperate with
the opposing party.
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B. Reasonableness of Attorney Fees Requested
Thomas next contends that the superior court erred in its determination of
the reasonableness of the attorney fees requested by Brown. Because the court
did not enter any findings in support of its reasonableness determination, we
agree with Thomas.
“Trial courts must articulate the grounds for a fee award, making a record
sufficient to permit meaningful review.” Mullor v. Renaissance Ridge
Homeowners’ Ass’n, 22 Wn. App. 2d 905, 919, 516 P.3d 812 (2022) (citing White
v. Clark County, 188 Wn. App. 622, 639, 354 P.3d 38 (2015)). In general, this
means that the court must supply findings of fact and conclusions of law
sufficient to permit a reviewing court to determine why the court awarded the
amount in question. Id. at 919-20 (citing White, 188 Wn. App. at 639). Indeed, in
determining the reasonableness of an attorney fee award, “‘[c]ourts 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.’” View Ridge Ests., 30 Wn. App. 2d
at 647 (quoting Berryman, 177 Wn. App. at 657). Therefore, our Supreme Court
has held that findings of fact and conclusions of law are required to establish a
record on review to support a fee award. Mahler v. Szucs, 135 Wn.2d 398, 435,
957 P.2d 632 (1998). The appropriate remedy if the trial court does not make
findings of fact and conclusions of law supporting the attorney fee award is to
remand to the trial court for entry of proper findings and conclusions. Mullor, 22
Wn. App. 2d at 920 (citing White, 188 Wn. App. at 639).
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Here, prior to the February 2024 hearing before the superior court
commissioner on Brown’s enforcement motion, Brown’s legal counsel provided
an amended attorney fee declaration. The declaration provided a several-page
table detailing the dates, timekeepers, hours, rates, amounts, and narratives
associated with the services that he and his paralegal had provided therein. In
response, Thomas raised several objections to the reasonableness of the fee
award, such as including clerical work. 15 In issuing its order on enforcement
following the hearing, the commissioner stated only as follows with regard to the
reasonableness of the award: “The court concludes that the fees requested are
reasonable under the circumstances.” The superior court adopted this
determination without making additional findings based on the record before it.
The superior court erred. A superior court “must show how the court
resolved disputed issues of fact and the conclusions must explain the court’s
analysis.” Berryman, 177 Wn. App. at 658. The superior court did not do so here,
and the record does not allow for a proper review of these issues. Mayer v. City
15 “Our Supreme Court has held that ‘reasonable attorney fees’ includes reasonably, necessary expenses of litigation.” N. Coast Elec. Co. v. Selig, 136 Wn. App. 636, 643, 151 P.3d 211 (2007) (quoting Panorama Vill. Condo. Owners Ass’n Bd. of Dirs. v. Allstate Ins. Co., 144 Wn.2d 130, 142, 26 P.3d 910 (2001); Louisiana-Pac. Corp. v. Asarco, Inc., 131 Wn.2d 587, 605, 934 P.2d 685 (1997) (Sanders, J., concurring)); accord Weeks, 122 Wn.2d at 151 (included in reasonable attorney fees is “the amount of time that it would take a competent practitioner to recognize the [] issue, research the relevant law, discover the pertinent facts, and then prepare, file and prevail upon” the motion in question). Conversely, “‘compensation for preparing pleadings for duplication, preparing and delivering copies, requesting copies, and obtaining and delivering a docket sheet’” is not within the realm of “‘reasonable attorney fees.’” N. Coast Elec., 136 Wn. App. at 644 (quoting Absher Constr. Co. v. Kent Sch. Dist., 79 Wn. App. 841, 845, 905 P.2d 1229, 917 P.2d 1086 (1995)). Additionally, if certain requirements are established, “the services of a ‘qualified legal assistant’ may be included in an attorney fee award.” Id. at 644.
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of Seattle, 102 Wn. App. 66, 82-83, 10 P.3d 408 (2000). Thus, the trial court
abused its discretion. We therefore must remand this matter “for the entry of
proper findings of fact and conclusions of law that explain the basis” for the
reasonableness of the attorney fee award. View Ridge Ests., 30 Wn. App. 2d at
648. 16 We note that, if the superior court determines that, in order to resolve the
question of the reasonableness of the attorney fee award, evidence in addition to
that which was presented to the commissioner becomes necessary, the superior
court shall remand the matter to the commissioner to conduct further findings.
Goodell, 130 Wn. App. at 388 (citing Moody, 137 Wn.2d at 992-93; Balcom, 101
Wn. App. at 59). 17
Request for an Award of Attorney Fees on Appeal
Brown requests an award of fees under RAP 18.1. However, she fails to
provide us with statutory or decisional authority in support of her entitlement to an
award of attorney fees on appellate review, in violation of RAP 18.1(a). She also
16 We emphasize that, as in View Ridge Ests, “[t]he essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838, 131 S. Ct. 2205, 180 L. Ed. 2d 45 (2011). Indeed, “the determination of fees ‘should not result in a second major litigation.’” Fox, 563 U.S. at 838 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). We encourage the superior court and the parties to keep as much in mind on remand. 30 Wn. App. 2d at 648-49. 17 We note that, on June 7, 2024, three days after the filing of Thomas’s notice of appeal, the superior court issued an order granting a motion for revision by Thomas that, based on the docket number, appears to have arisen from a later-filed motion for revision. Brown seeks to rely on this order to establish that Thomas’s challenge to the attorney fee award arising from the superior court’s May 2024 order is moot. However, Brown has not designated this June 2024 order for review, has not presented us with the motions and briefing that were before the superior court that prompted this order, and has not provided us with the judgment entered by the court following entry of this order. Therefore, we do not consider this June 2024 order in resolving the matter before us.
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does not substantially prevail on all issues before us. Therefore, we deny her
request.
CONCLUSION
The superior court did not err by enforcing the disputed items’ property
division and valuation. Nor did the court err in determining that an award of
attorney fees was warranted by Thomas’s intransigence during the enforcement
proceedings as to certain disputed items. However, the court did not adequately
address Thomas’s objections to the reasonableness of Brown’s request for
attorney fees and costs. Therefore, we remand this matter to the trial court to do
so.
Affirm in part, reverse in part, and remand for further proceedings only as
to the reasonableness of attorney fees.
WE CONCUR:
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