IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of: No. 87370-9-I
LINGJUN STEVE HOU, DIVISION ONE
Respondent, and UNPUBLISHED OPINION
JIE YAO HOU,
Appellant.
SMITH, J. — An arbitrator directed Jie Hou to prepare a qualified domestic
relations order (QDRO) splitting her Public Employees’ Retirement System
Plan 2 (PERS 2) account with her ex-spouse, Steve Hou. In this appeal, Jie1
challenges the trial court’s orders confirming the arbitrator’s award, denying Jie’s
motion to vacate the award, entering a QDRO pursuant to the award, and
awarding attorney fees to Steve. She also challenges the trial court’s denial of
her motion to revise a commissioner’s order that denied reconsideration of fees
awarded to Steve in a contempt proceeding. We affirm.
FACTS
In December 2022, the trial court entered a final dissolution decree
dissolving the parties’ marriage. The decree incorporated a separation contract
that the parties executed under Civil Rule (CR) 2A in September 2022 (CR 2A
1The parties share a last name, so for clarity, we refer to them by the names they used in their declarations and correspondence below. No. 87370-9-I/2
agreement). The CR 2A agreement provided, with regard to the parties’
respective pensions, 4. Pensions: The community interest in Husband’s City of Seattle Pension shall be awarded 50% to husband and 50% to wife. Husband shall pay the cost of preparing a QDRO to effectuate this award. 5. The community interest in Wife’s PERS II Pension shall be awarded 50% to wife and 50% to husband. Wife shall pay the cost of preparing a QDRO to effectuate this award.
The CR 2A Agreement also provided, “Each party agrees and stipulates that all
disputes in reducing this agreement to orders suitable for entry with the court,
including resolution of any issues inadvertently omitted from the agreement but
necessary to final disposition of this matter, shall be subject to binding arbitration”
under the uniform arbitration act (UAA), RCW chapter 7.04A.2
The dissolution court also entered a child support order stating, among
other things, that “[b]eginning 10/1/2022, [Steve] agrees to provide [the parties’
daughter] with $700.00 per month for living expenses and share [certain]
expenses so long as she is enrolled in her undergraduate program.”
In June 2023, Steve moved to compel arbitration, alleging that although he
had complied with his obligation to prepare a QDRO to effectuate the CR 2A
agreement as it applied to his pension, Jie was refusing to prepare a QDRO for
her PERS 2 pension. On August 2, 2023, an arbitrator issued an award directing
Jie “to prepare an approved [QDRO] for her Washington State PERS II pension,
2 The CR 2A agreement refers to RCW chapter 7.04, which was repealed when Washington adopted the revised UAA. See LAWS OF 2005, ch. 433, § 50. It is undisputed that RCW chapter 7.04A applies, and both parties rely on it in their briefs.
2 No. 87370-9-I/3
present it to [Steve] for signature and submit it to the pension administrator for
review no later than August 31, 2023.”
In December 2023, Steve again moved to compel arbitration. He argued
that because Jie was vested in her PERS 2 pension, she was required to prepare
a QDRO that split her PERS 2 account into two separate accounts under
WAC 415-02-520 (split-type QDRO), rather than one that merely gave Steve an
interest in her account under WAC 415-02-510 (interest-type QDRO). Steve
pointed out that under an interest-type QDRO, he would not receive any
payments from Jie’s pension until Jie terminated her employment or retired, and
if Jie terminated her employment, he would not receive any payments until Jie
withdrew her accumulated contributions. See WAC 415-02-510(2)(b)(i)-(ii).
Therefore, Steve asserted, he would “receive nothing until [Jie] decides to retire
and until she decides to take a distribution of the proceeds of her pension,” and
because Jie was four years younger than Steve, he would “be forced to wait until
at least he is 69 before receiving any benefit.” He also asserted that under WAC
415-02-510(2)(c)(iii), he would stop receiving payments if Jie died before he did.
By contrast, under a split-type QDRO, Steve could begin receiving payments
once he reached retirement age, see WAC 415-02-520(3)(i), and “[w]hen [Jie] or
[Steve] dies, there will be no impact to the other person’s retirement account
because the accounts are independent from one another.” WAC 415-02-
520(3)(h). Steve represented that Jie was insisting on an interest-type QDRO,
and he requested that the matter be submitted to binding arbitration.
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The trial court determined that “this is a dispute that clearly falls within the
broad language of the binding arbitration clause of the CR2A Agreement” and
granted Steve’s motion to compel arbitration. On April 22, 2024, the arbitrator
issued their award. They explained that “[e]xcept for the requirement that
QDRO’s be prepared, the manner in which [the community interest in each
pension] will be distributed is not stated in the [CR 2A agreement] and is the
subject of this arbitration.” After discussing the parties’ arguments about an
interest-type versus a split-type QDRO, the arbitrator concluded, If [Jie]’s ‘interest’ QDRO were entered, she would continue to have authority to determine when or if [Steve] would receive his now separate interest in her PERS II pension. He would be left with the specter of continued litigation to secure his property right if his fears are realized and Ms. Hou elects not to collect her pension during his lifetime. The law prefers finality and the way to achieve that in this situation is to enter an order under WAC’s 415-02-500 and 415-02-520 splitting Ms. Hou’s PERS II pension into two accounts.
The arbitrator directed Jie to prepare a split-type QDRO for Steve’s review “no
later than May 10, 2024.” They also ordered that if Jie failed to timely prepare a
split-type QDRO, Steve “may prepare the order and [Jie] shall be obligated to
pay any attorney fees that [Steve] incurs for drafting, preparation and entry of the
order.”
On May 17, 2024, Steve moved to confirm the arbitration award and for
attorney fees. He asserted that Jie had refused to obey the arbitrator’s order,
and he requested that the trial court direct her to comply. Jie, for her part, moved
to vacate the arbitration award. She argued among other things that by stating
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that “the community interest”3 in her PERS 2 pension would be awarded 50
percent to Steve, the CR 2A agreement contemplated that Steve would receive
only an interest in her PERS 2 pension and was not entitled to a split-type QDRO
giving him a separate account.
On August 12, 2024, the trial court granted Steve’s motion to confirm the
arbitration award, denied Jie’s motion to vacate it, and awarded Steve $2,500 in
attorney fees. The court ordered Jie to comply with the award within seven days,
and “[i]f [Jie] fails to comply with this order within 7 days, [Steve] may draft a
QDRO that is compliant with the arbitration award and submit it to the court for
signature along with an additional request for attorney fees for the costs of
drafting and presenting the QDRO.”
On August 29, 2024, Steve moved for an award of attorney fees. He
represented that after the trial court confirmed the arbitration award, Jie “took no
action whatsoever,” so on August 22, Steve, through counsel, prepared a QDRO
and sent it to the Washington Department of Retirement Systems (DRS) for
preliminary review. Steve submitted copies of correspondence showing that Jie
objected to DRS’s approval of Steve’s proposed QDRO, telling DRS that Steve
“[d]oes [n]ot have the authority to create a Proposed Order dividing my retirement
account using the ‘split account’ option.”4 DRS approved Steve’s proposed
QDRO,5 which Steve then submitted to the trial court for signature and filing.
3 Emphasis added. 4 Bold face omitted. 5 According to an e-mail from the DRS retirement specialist who reviewed
the proposed QDRO, “DRS does not make a determination on whether a court
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Jie opposed Steve’s motion for an award of fees. She asserted that
Steve’s proposed split-type QDRO was “void,” again arguing that the reference to
“interest” in the pension provisions of the CR 2A agreement meant that she was
required to prepare an interest-type QDRO and not a split-type QDRO. She also
argued that because the CR 2A agreement stated that “[n]either party shall pay
any attorney fees or costs to or for the benefit of the party,” she could not be
ordered to pay Steve’s attorney fees.
On September 23, 2024, the trial court entered an order awarding Steve
$1,338.50 in attorney fees incurred in connection with preparing the QDRO. It
also entered Steve’s proposed QDRO. Jie timely appealed from these orders as
well as the trial court’s earlier order confirming the arbitration award and denying
Jie’s motion to vacate it.
Meanwhile, in July 2024, Jie moved for an order holding Steve in
contempt for failing to pay postsecondary educational support for the parties’
daughter. A commissioner denied the motion, reasoning that “per RCW
26.19.090(4) the child is required to make her academic records available to
[Steve],” and “[h]er refusal to do so is a basis for [Steve] to suspend payment.”
The commissioner also ordered Jie to pay $787.50 in attorney fees, reasoning
that “[t]he CR 2A agreement did not prospectively bar [Steve] from seeking fees
for matters beyond the scope of the [agreement].”
order should or should not be applied to a DRS retirement account” but would review it “for compliance with the rules and regulations regarding the division of a state retirement account.”
6 No. 87370-9-I/7
Jie moved for reconsideration of the commissioner’s fee award, arguing
that because “[t]he Attorney Fees and Costs clause in [the CR 2A agreement]
states: ‘Neither party shall pay any attorney fees or costs to or for the benefit of
the other party,’ ” Steve was responsible for paying his own attorney fees and
costs. The commissioner denied reconsideration, explaining, The CR 2A Agreement signed by the parties in 2022 was binding as to the issues addressed in the agreement including post- secondary education (which was incorporated into a court order). The CR2A & final orders provide that each party will pay their own attorney fees. Nothing in the CR2A or the final orders supports [Jie]’s position that the court is somehow barred from awarding fees incurred by a party post-decree associated with litigation that was not part of the CR2A. Post-secondary support was part of the CR2A & final orders. The issue of contempt and/or enforcement is, however, distinct and, in this case, the fees awarded were authorized by statute.
Jie moved to revise the commissioner’s order denying reconsideration,
and a superior court judge denied revision. Jie then filed another notice of
appeal designating the order denying revision.
DISCUSSION
Confirmation of Arbitration Award
Jie claims that the trial court erred by confirming the arbitration award and
denying her motion to vacate it. We disagree.
We review de novo a trial court’s decision to confirm or vacate an
arbitration award. Fid. Fed. Bank, FSB v. Durga Ma Corp., 386 F.3d 1306, 1311
(9th Cir. 2004); see also Salewski v. Pilchuck Veterinary Hosp., Inc., P.S., 189
Wn. App. 898, 903, 359 P.3d 884 (2015) (on review, appellate court applies “the
same standard applicable in the court which confirmed, vacated, modified or
7 No. 87370-9-I/8
corrected th[e arbitration] award”). Washington law strongly favors the finality of
arbitration awards, and “judicial review of an arbitration award in the context of a
proceeding . . . to confirm an arbitrator’s award is exceedingly limited.” Davidson
v. Hensen, 135 Wn.2d 112, 118-19, 954 P.2d 1327 (1998). Judicial review of an
arbitration award “does not include a review of the merits of the case,” and the
evidence before the arbitrator ordinarily will not be considered by the court.
Davidson, at 119. Instead, review “ ‘is confined to the question of whether any of
the statutory grounds for vacation exist.’ ” Salewski, 189 Wn. App. at 903-04
(quoting Cummings v. Budget Tank Removal & Env’t Servs., LLC, 163 Wn. App.
379, 388, 260 P.3d 220 (2011)). As relevant here, the court “shall” confirm the
arbitrator’s award unless (1) the arbitrator “exceeded the arbitrator’s powers” or
(2) the arbitrator “refused to consider evidence material to the controversy . . . so
as to prejudice substantially the rights of a party to the arbitration proceeding.”
RCW 7.04A.220; RCW 7.04A.230(1), (4). As the party seeking to vacate the
award, Jie bears the burden to show that such grounds exist. Salewski, 189 Wn.
App. at 904.
Jie does not meet this burden. She first contends that the arbitrator
exceeded their powers. “To vacate an award on this ground, the error must
appear ‘on the face of the award,’ ” such as, for example, where an arbitrator
identifies a portion of the award as punitive damages in a jurisdiction that does
not allow punitive damages. Salewski, 189 Wn. App. at 904 (quoting Federated
Servs. Ins. Co. v. Pers. Representative of Estate of Norberg, 101 Wn. App. 119,
123, 4 P.3d 844 (2000)).
8 No. 87370-9-I/9
Jie makes a number of arguments to support her contention that the
arbitrator exceeded their powers. She contends that the arbitrator decided an
issue that was not before them, failed to render a final and definite award, and
committed significant legal errors. But at bottom, all of her arguments are
premised on her claim that by referring to the “community interest”6 in the parties’
respective pensions, the CR 2A agreement—and the final dissolution decree that
incorporated it—mandated that the parties enter into interest-type QDROs to
effectuate the pension-related clauses of the agreement.7 The arbitrator rejected
this argument, explaining that “[t]he word ‘interest’ in these clauses refers to the
property being divided and not to the manner in which it is to be divided.” Jie
obviously disagrees with the arbitrator’s interpretation of the CR 2A agreement,
and her arguments on appeal essentially ask this court to reexamine the
agreement and reach a different conclusion than the arbitrator did. But because
our review does not encompass the merits of the arbitrator’s decision, we decline
to do so.
Jie next contends that the arbitrator refused to consider evidence material
to the controversy and that when she raised this alleged refusal in her motion to
6 Emphasis added. 7 For example, Jie asserts that “[b]oth the husband and the wife have agreed, without dispute, that each party should enter an ‘interest’ type QDRO as mandated by the decree of dissolution”; the only issue that should have been considered by the arbitrator was “whether WAC 415-02-520 should be used . . . for the wife’s PERS 2 ‘interest’ type QDRO”; “[t]he decree of dissolution includes mirrored pension division terms that specifically require the husband and wife each to prepare and enter the same ‘interest’ type QDRO”; and she is at risk of being held in contempt based on the conflict between the arbitration award and the dissolution decree, which the arbitrator was without authority to overrule.
9 No. 87370-9-I/10
vacate the arbitrator’s award, the trial court failed to consider it, thus depriving Jie
of due process. Jie does not specify what evidence the arbitrator failed to
consider; but she described it below as “the parties’ CR2A agreement, the
pension division law WAC 415-02-500 and her original interest type PERS 2
QDRO,” which Jie asserted “prove[d] that [she] . . . did follow the direction of
WAC 415-02-500 and the CR2A agreement by using [an interest-type QDRO] to
divide her pension.”
But this evidence was not “material” to the controversy because the issue
before the arbitrator was the manner in which the parties’ community interest in
Jie’s pension should be divided (i.e., using an interest-type QDRO or a split-type
QDRO), not whether Jie’s proposed interest-type QDRO complied with the
WACs. Furthermore, Jie does not point to anything in the record to show that the
trial court did not consider her argument that the arbitrator refused to consider
material evidence. To the contrary, the trial court expressly acknowledged in its
order confirming the arbitration award that Jie alleged the arbitrator “failed to
consider evidence.” Jie’s contentions fail, and she does not establish that the
trial court erred by confirming the arbitration award.
Entry of QDRO
Jie next asserts that the QDRO was procured by fraud and that it is void,
and she points out that a court may vacate a judgment obtained by fraud, as well
as a void judgment, at any time under CR 60(b)(4) and (5). But Jie did not file a
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CR 60(b) motion below, and in any case, she does not establish a basis to
vacate the QDRO.8
According to Jie, the arbitration award states, “ ‘[The husband] may
prepare the [‘split’ type QDRO] and . . . [The wife] shall . . . sign [the] order . . . so
it can be submitted to the court.’ ”9 Therefore, Jie asserts, Steve was required to
obtain her signature on the QDRO before he could submit it to the court, and
because the trial court did not require him to do so and instead entered the
QDRO without her signature, the QDRO is void.
Jie at best misunderstands—and at worst, misrepresents—the language
in the arbitration award. In full, it states, [Jie] shall prepare a qualifying “split” [QDRO] pursuant to WAC 415- 02-520 for [Steve]’s review no later than May 10, 2024. If she fails to timely provide an order, [Steve] may prepare the order and [Jie] shall be obligated to pay any attorney fees that [Steve] incurs for drafting, preparation and entry of the order. [Jie] shall have no more than ten business days to sign an order once it is approved by [Steve] so it can be submitted to the court.[10]
In other words, Jie’s signature was not a condition to submission of the QDRO
but rather an obligation she was required to fulfill. The trial court did not err by
authorizing Steve to present a QDRO without Jie’s signature, or entering that
QDRO without Jie’s signature, after Jie did not timely fulfill that obligation.
8 We exercise our discretion to reach Jie’s arguments in favor of vacating the QDRO even though she raises them for the first time on appeal. Cf. RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not raised in the trial court.”). 9 Bold face omitted.
10 Emphasis added.
11 No. 87370-9-I/12
Jie also asserts that the QDRO was procured by fraud because Steve’s
counsel submitted it to the court without an accompanying motion; “intentionally
made a false statement that ‘This Order is entered pursuant to the decree of
dissolution’ [when i]n reality, it directly contradicted the ‘interest’ type QDRO
explicitly mandated by the decree of dissolution”; and “improperly submitted the
void ‘split’ type QDRO to [DRS].” But the trial court’s order confirming the
arbitration award expressly authorized Steve to submit an split-type QDRO to the
court for signature if Jie failed to do so within seven days; Jie’s claim that the CR
2A agreement and resulting dissolution decree mandated an interest-type QDRO
is, as discussed, not within the scope of our review; and Jie cites no authority for
the proposition that Steve acted “improperly” by submitting his proposed QDRO
to DRS for approval.
Finally, Jie maintains that the superior court deprived her of due process
by allowing Steve to submit the split-type QDRO without a motion and, thus, the
trial court lacked subject matter jurisdiction to enter it, and it is void. This
argument is without merit. Jie had notice and an opportunity to be heard when
Steve moved to confirm the arbitration award that directed Jie to prepare an split-
type QDRO, and the record reflects that Steve provided her a copy of his
proposed QDRO when he submitted it to DRS for review. Jie fails to show that
additional process was required under the circumstances. Cf. In re Detention of
Lough, 27 Wn. App. 2d 717, 533 P.3d 1184 (2023), review denied, 2 Wn.3d 1013
(2024) (in determining procedural due process protections, courts balance
“ ‘(1) the private interest affected; (2) the risk of erroneous deprivation of that
12 No. 87370-9-I/13
interest through existing procedures and the probable value, if any, of additional
procedural safeguards; and (3) the governmental interest, including costs and
administrative burdens of additional procedures.’ ” (quoting In re Detention of
Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007))).
QDRO-Related Fee Awards
Jie next asserts that we must vacate the fee awards entered in connection
with confirming the arbitration award and entry of the QDRO. We disagree.
“Washington follows the American rule that attorney fees are recoverable
in a suit only when authorized by statute, contract, or equity.” Mehlenbacher v.
DeMont, 103 Wn. App. 240, 244, 11 P.3d 871 (2000). When reviewing an award
of attorney fees, we generally ask first whether the prevailing party was entitled
to fees, and second, whether the award of fees was reasonable. Pub. Util. Dist.
No. 1 of Klickitat County v. Int’l Ins. Co., 124 Wn.2d 789, 814, 881 P.2d 1020
(1994). Here, Jie challenges only Steve’s entitlement to fees. To that end, the
UAA provides that “[o]n application of a prevailing party to a contested judicial
proceeding [to confirm, vacate, modify, or correct an arbitration award], the court
may add to a judgment . . . attorneys’ fees and other reasonable expenses of
litigation incurred in a judicial proceeding after the award is made.” RCW
7.04A.250(3).
“[W]e review a discretionary decision to award or deny attorney fees . . .
for an abuse of discretion.” Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d
1100 (2012). A trial court abuses its discretion when its decision is “ ‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” In
13 No. 87370-9-I/14
re Receivership of Applied Restoration, Inc., 28 Wn. App. 2d 881, 891, 539 P.3d
837 (2023) (internal quotation marks omitted) (quoting MONY Life Ins. Co. v.
Cissne Fam., LLC, 135 Wn. App. 948, 952-53, 148 P.3d 1065 (2006)), review
denied, 3 Wn.3d 1012 (2024). A trial court also abuses its discretion when its
decision is based on an error of law. King v. Olympic Pipeline Co., 104 Wn. App.
338, 355, 16 P.3d 45 (2000).
Jie contends that Steve was not entitled to fees because “[b]oth parties
expressly agreed and stipulated in the CR 2A agreement that ‘Neither party shall
pay any attorney fees or costs to or for the benefit of the other party.’ ” She
asserts that “[b]y signing this agreement, the parties waived their rights to seek
attorney fees and costs.” Absent disputed material facts, whether a party
contractually waived a statutory right is a question of law that we review de novo.
In re Estate of Petelle, 195 Wn.2d 661, 665, 462 P.3d 848 (2020).
Jie relies on Hitter v. Bellevue School District No. 405, 66 Wn. App. 391,
832 P.2d 130 (1992), to claim that Steve waived any right to request fees under
the UAA. But Hitter is distinguishable. There, we held that a person who
prevails at arbitration in a wage dispute is entitled to attorney fees under RCW
49.48.030. Hitter, 66 Wn. App. at 396. But we also held that the party seeking
fees had waived that entitlement under an agreement that specifically stated that
“[t]he fees and expenses of the arbitrator shall be shared equally by [the parties,
and a]ll other expenses shall be borne by the party incurring them.” Id. at 397.
Here, unlike in Hitter, the attorney fees provision in the CR 2A agreement
does not mention arbitration—much less does it address fees incurred in future
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judicial proceedings to confirm or vacate an arbitration award. Instead, the only
reasonable interpretation of the provision is that each party was to bear their own
fees incurred in connection with entering into the agreement itself. Jie’s reliance
on Hitter is misplaced.
Jie next contends that the trial court “overlooked” that Steve’s attorney
fees “were incurred . . . for obtaining fraudulent orders from the Court through his
counsel’s three instances of fraud upon the court,” and “[i]t is axiomatic that fraud
vitiates everything.” But for reasons already discussed, Jie’s claim that the trial
court’s challenged orders were obtained through fraud lack merit.
In sum, Jie does not establish that the trial court erred by concluding that
Steve, who prevailed below, was entitled to fees under the UAA for the fees he
incurred in connection with confirming the arbitrator’s award and then carrying it
out after Jie herself did not timely do so.
Contempt Hearing Fee Award
Jie also maintains that we must vacate the commissioner’s order awarding
Steve fees for defending against Jie’s contempt motion. We disagree.
Jie asserts that under RCW 26.09.160(7), a court is authorized to order
the party moving for contempt to pay the nonmoving party’s fees only if “the court
finds the motion was brought without reasonable basis.” And here, the
commissioner did not make that finding in their order denying Jie’s contempt
motion and awarding Steve his attorney fees. But Jie did not appeal from that
order. Instead, she appealed from the superior court’s order denying her motion
to revise the commissioner’s order denying reconsideration of that order. We
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review the superior court’s decision for an abuse of discretion. Applied
Restoration, 28 Wn. App. 2d at 890; see also In re Marriage of Williams, 156 Wn.
App. 22, 27, 232 P.3d 753 (2010) (“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 her motion for reconsideration, Jie argued only that an award of fees
was precluded by the language in the CR 2A agreement stating, “Neither party
shall pay any attorney fees or costs to or for the benefit of the other party.” For
reasons already discussed, that argument is without merit. It was not until Jie
moved to revise the commissioner’s order denying reconsideration that she
raised the issue of whether the commissioner erred under RCW 26.09.160(7).
Jie does not address this procedural history much less show that the trial
court abused its discretion by declining to revise based on an issue that was not
before the commissioner. Cf. In re Marriage of Moody, 137 Wn.2d 979, 992-93,
976 P.2d 1240 (1999) (“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.”). Accordingly, she does not
establish a basis for reversing the trial court’s denial of her motion to revise the
commissioner’s order denying reconsideration.
Fees on Appeal
Steve requests an award of fees on appeal under (1) the UAA, (2) RCW
26.09.140, the discretionary attorney fee statute for dissolution proceedings, and
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(3) RAP 18.9(a) as a sanction for a frivolous appeal. We may award attorney
fees on appeal if authorized by applicable law. RAP 18.1(a).
As noted, the UAA provides that “[o]n application of a prevailing party to a
contested judicial proceeding [to confirm, vacate, modify, or correct an arbitration
award], the court may add to a judgment . . . attorneys’ fees and other
reasonable expenses of litigation incurred.” RCW 7.04A.250(3). Because Steve
is the prevailing party with regard to Jie’s appeal from the orders entered to
confirm and effectuate the arbitration award, we grant his request for fees
incurred in connection with Jie’s appeal from those orders, subject to his
compliance with RAP 18.1(d).11 Cf. Saleemi v. Doctor’s Assocs., Inc., 166 Wn.
App. 81, 98, 269 P.3d 350 (2012) (awarding fees to substantially prevailing party
in appeal from confirmation of arbitration award).
However, we deny Steve’s request for fees on appeal to the extent
incurred in connection with Jie’s appeal from the order denying revision of the
commissioner’s contempt hearing fee award. That aspect of Jie’s appeal is not
governed by the UAA. Furthermore, Jie’s arguments in that part of her appeal
were not frivolous, and Steve did not timely file a financial affidavit as required by
RAP 18.1(c) when “applicable law mandates consideration of the financial
resources of one or more parties regarding an award of attorney fees and
expenses.” Cf. Advocates for Responsible Development v. W. Wash. Growth
11 Because we grant Steve’s request under the UAA, we need not decide whether RCW 26.09.140 or RAP 18.1 support an award of fees incurred in connection with Jie’s appeal from the orders entered to confirm and effectuate the arbitration award.
17 No. 87370-9-I/18
Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010) (“An appeal is
frivolous if, considering the entire record, the court is convinced that the appeal
presents no debatable issues upon which reasonable minds might differ, and that
the appeal is so devoid of merit that there is no possibility of reversal.”); In re
Marriage of French, 32 Wn. App. 2d 308, 319, 557 P.3d 1165 (2024) (in
exercising discretion under RCW 26.09.140, “ ‘we consider the issues’ arguable
merit on appeal and the parties’ financial resources, balancing the financial need
of the requesting party against the other party’s ability to pay’ ” (quoting In re
Marriage of Kim, 179 Wn. App. 232, 256, 317 P.3d 555 (2014))).
We affirm.
WE CONCUR: