FILED JUNE 6, 2024 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
PHILLIP WADE SMITH, ) ) No. 39342-9-III Appellant, ) Consolidated with ) No. 39557-0-III v. ) ) VERA LYNNE SMITH, ) UNPUBLISHED OPINION ) Respondent. )
COONEY, J. — In 2018, after 31 years of marriage, Phillip Smith and Vera Lynne
Smith1 separated. Among other accords, they agreed that Phillip would pay Lynne
$2,200 per month in spousal maintenance. Their agreement was memorialized in a final
order of legal separation. In 2021, Phillip filed a petition for modification of spousal
maintenance. The trial court denied his petition. A year later, Phillip filed a second
petition for modification of spousal maintenance. Lynne moved to dismiss the petition
under CR 12(b)(6) and CR 56. The trial court granted the motion and entered an order
that dismissed the petition. Thereafter, Lynne successfully obtained an order of contempt
against Phillip. Phillip appeals both orders.
1 For the sake of clarity, the parties are referred to by their first names. No disrespect is intended. Both parties’ briefs and portions of the record refer to “Vera” as “Lynne.” For consistency we follow suit. No. 39342-9-III; No. 39557-0-III Smith v. Smith
We decline review of the order dismissing the petition and affirm all other aspects
of the trial court’s orders.
BACKGROUND
Phillip and Lynne were married for 31 years before separating in 2018. Prior to
September 10, 2018, when the final order of legal separation (final order) was entered,
the parties agreed, among other issues, on the division of their estate and spousal
maintenance. In the trial court’s findings of fact and conclusions of law that were agreed
to by the parties, the court determined that there was a sizeable disparity between the
parties’ incomes. The court found Phillip’s gross monthly income was between $7,300 to
$8,400, while Lynne’s monthly income was $1,600 from part-time employment. The
court found Lynne could earn up to $2,000 per month with full-time employment.2
The final order awarded Lynne the parties’ home and required her to refinance
within one year to release the VA3 loan back to Phillip. Lynne was also awarded 50
percent of Phillip’s military pension, including cost of living adjustments (COLA).
Phillip was ordered to provide health insurance coverage for Lynne under two of his
policies and, in the event he converted the legal separation into a divorce prior to Lynne
becoming eligible for social security benefits, pay Lynne an additional sum sufficient for
2 The findings of fact do not state whether the $1,600 or $2,000 per month is a net or gross income. 3 United States Veterans Administration.
2 No. 39342-9-III; No. 39557-0-III Smith v. Smith
her to acquire health insurance with “comparable benefits and deductibles.” Clerk’s
Papers (CP) at 172.
The final order required Lynne to submit a DD-2293 form to the Defense Finance
Accounting Service (DFAS). Until such time as the DFAS made direct payments to
Lynne, Phillip was ordered to pay Lynne “her share of the pension directly via allotment
or direct deposit.” Id. at 173. Should the legal separation be converted into a divorce,
Lynne would be required to submit a DD-2656-10 form to the DFAS. Lynne attempted
to file the DD-2293 form with the DFAS, but her paperwork was rejected due to a
clerical error. Lynne then worked with her attorney and an expert to redraft the order.
However, Phillip declined to sign the new order because he “did not have a level of trust
with the other side and . . . wanted to make sure there were independent orders.” Id. at
23.
On April 13, 2021, Phillip filed a petition for modification of spousal
maintenance4 (first petition). On the same date, Phillip filed a financial declaration in
support of his petition5 (first declaration). Ultimately, the trial court dismissed the first
petition. In May 2022, Lynne filed a motion for contempt, that alleged Phillip had not
paid the entirety of his spousal maintenance obligation nor her share of the military
pension. The trial court did not find Phillip in contempt, but cautioned him that a
4 The petition was not designated for our review.
3 No. 39342-9-III; No. 39557-0-III Smith v. Smith
judgment would be entered if he failed to pay any overdue maintenance within 30 days.
On June 22, 2022, the legal separation was converted to a dissolution.
PETITION FOR MODIFICATION
In July 2022, Phillip filed a second petition for modification of spousal
maintenance (second petition). Phillip alleged that there had been a substantial change in
circumstances that was hampering his ability to pay maintenance and that Lynne no
longer had the need for maintenance. Lynne responded to the petition and also filed a
motion to dismiss under CR 12(b)(6) and CR 56, arguing that Phillip failed to “allege[ ]
any specific reasons [the spousal maintenance order] cause[d] him severe economic
hardship.” CP at 14.
Phillip moved to strike Lynne’s motion to dismiss. He also filed a declaration that
alleged a change in circumstances due to increased health insurance payments to Lynne,
the formal division of his military pension, increased rent that totaled $2,495 per month,
an appreciation in equity in the parties’ home, and an increase in Lynne’s income.
Phillip filed a financial declaration (second declaration) that stated his gross
monthly income was $11,800 and, after deducting $6,068 for taxes, spousal support, and
the division of his pension, his net monthly income was $5,732. Phillip further declared
that he paid $2,495 in monthly rental payments for his new residence, resulting in $6,024
5 Phillip’s April 2021 financial declaration was not designated for our review.
4 No. 39342-9-III; No. 39557-0-III Smith v. Smith
in monthly expenses. Additionally, Phillip claimed his minimum monthly credit card
payments totaled $1,250.
At a hearing held on September 15, 2022, a superior court commissioner
reviewed, among other documents, Phillip’s first petition, first declaration, second
petition, and second declaration. The commissioner found Phillip’s net monthly income
had increased from $4,731 in 2021 to $5,732 in 2022 and that his gross monthly income
had increased from $8,192 in 2021 to $11,800 in 2022. The commissioner expressed
confusion as to why Phillip would move into “a place . . . that’s almost $2600 [a month]
to rent, and the maintenance amount is $2200.” Id. at 78. The commissioner concluded
that Phillip’s increased expenses were not uncontemplated events that would constitute a
substantial change in circumstances. By written order, the commissioner denied Phillip’s
motion to strike and granted Lynne’s motion to dismiss the second petition.
Phillip moved to revise the commissioner’s order. A superior court judge
reviewed the first petition and determined that “even viewing the evidence in the light
most favorable to Mr. Smith, the facts that were alleged essentially are the same facts that
were previously dismissed a year earlier.” Id. at 135. The judge engaged in an analysis
similar to the commissioner’s, noting that a maintenance obligation may only be
modified upon a showing of a substantial change in circumstances not contemplated
when the decree was entered. The judge found Phillip’s new home, increased health
5 No. 39342-9-III; No. 39557-0-III Smith v. Smith
insurance premiums, and the division of his military pension were events previously
contemplated by the parties and denied the motion to revise. In its order on revision, the
judge wrote, “the motion to revise is denied. The court adopts the oral ruling of Comm.
Pelc in full.” Id. at 117.
On November 15, 2022, Phillip filed an appeal of the trial court’s order dismissing
his second petition.
MOTION FOR CONTEMPT
On November 21, 2022, Lynne filed a motion for contempt, seeking to recover on
a $2,900.00 judgment that was entered against Phillip for unpaid spousal maintenance
from May 2022, and for $4,300.00 in unpaid spousal maintenance for the months of July
to October 2022. Lynne also alleged arrears totaling $3,469.01 for unpaid COLA
increases from Phillip’s pension dating back to 2018.
Phillip argued that he needed access to Lynne’s financial information to properly
respond to her contempt motion. Phillip asserted it was Lynne’s “duty to establish
evidence that payments have not been made.” Id. at 212. In regard to the COLA
payments, Phillip argued that Lynne needed to provide proof she had filed a DD-2293 or
DD-2656-10 form with the DFAS. Phillip also alleged that, based on his increased
expenses, he could no longer afford to pay maintenance.
6 No. 39342-9-III; No. 39557-0-III Smith v. Smith
In reply, Lynne provided documentation showing electronic monetary transfers
Phillip had made between August to October 2022. Lynne also asserted that Phillip knew
she had attempted to submit the proper forms with the DFAS, but could not due to the
initial order’s language.
A court commissioner found Phillip had the ability to comply with the
maintenance order, but chose not to. The commissioner found that, “Mr. Smith has made
every effort to not follow the final orders. He has filed numerous times, and has paid
attorney fee retainers amounting to the same amount owed.” Id. at 286. The
commissioner found that “Mr. Smith has acted in bad faith when refusing to pay spousal
maintenance” and that his failure to pay the COLA increases was intentional. Id. at 286-
87. The commissioner claimed that, “[t]his is one of the worst showings of bad faith the
court has seen in a while.” Id. at 286, 303.
In finding Phillip in contempt, the commissioner incorporated her oral ruling into
the final order. In her oral ruling, the commissioner found that Phillip’s actions were
intentional and constituted bad faith because:
He has now paid retainers to two separate attorneys and that’s just the retainer, we’re not talking about the money paid subsequent to retainers in the amount of $7000. He currently owes under this more recent contempt order $7769. Rather than paying what the court ordered, he’s choosing to pay that for attorneys, that’s fine. That’s your right. But when you’re saying you have no money to pay, but yet you’re able to spend that same amount of money on attorneys it proves to me bad faith.
7 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Id. at 304.
The contempt order required Phillip to pay $4,300.00 in past due spousal
maintenance, $3,469.01 in past due COLAs, and directed him to sign the military pension
division order so Lynne could begin having payments directly deposited into her account.
Finally, the commissioner awarded Lynne reasonable attorney fees. As to Phillip’s
assertation that he was entitled to Lynne’s financial records, the commissioner rejected
his argument.
A superior court judge later denied Phillip’s motion to revise the commissioner’s
order on contempt.
On March 2, 2023, Phillip filed an appeal of the trial court’s order of contempt.
Phillip’s appeal of the contempt order was consolidated with his appeal of the order
dismissing his second petition.
ANALYSIS
On appeal, Phillip contends Lynne’s motion to dismiss was procedurally defective
and that the trial court erred in dismissing his second petition and in finding him in
contempt.
WHETHER LYNNE’S MOTION TO DISMISS WAS PROCEDURALLY DEFECTIVE
Phillip contends Lynne’s motion to dismiss his second petition was defective
because it failed to comply with the applicable Local Rules for the Superior Court of
8 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Spokane County (LCR). Specifically, Phillip asserts that Lynne failed to file a
memorandum and documentary evidence supporting her motion as required by LCR
40(b)(9)(B). He further contends that Local Special Proceeding Rule (LSPR) 94.04(l)(2)
required Lynne to file a financial declaration before being awarded attorney fees. We
disagree with both arguments.
LCR 40(b)(9)(B) reads:
The moving party shall file a motion, all supporting affidavits or declarations and documentary evidence, and a brief or memorandum of authorities, unless the legal position is fully and adequately covered by the “authorities” section of the issue of law form. These documents shall be filed and served no later than twelve (12) days prior to the hearing.
Phillip urges us to interpret this rule as requiring the moving party to file a memorandum
along with documentary evidence. We decline to adopt such a strict interpretation. First,
LCR 40(b)(9)(B) concludes by stating “unless the legal position is fully and adequately
covered by the ‘authorities’ section.” This implies a memorandum may not always be
necessary. Moreover, when deciding a CR 12(b)(6) motion, generally, a trial court may
consider only the factual allegations contained in the pleadings, thereby alleviating the
necessity for documentary evidence. LaRose v. King County, 8 Wn. App. 2d 90, 103,
437 P.3d 701 (2019). Further, if LCR 40(b)(9)(B) mandated the filing of a memorandum
and documentary evidence, it would preempt the provisions of CR 12(b)(6).
9 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Secondly, while LCR 40(b)(9)(B) generally governs the filing and scheduling of
motions, LCR 40(b)(8) is specific to dispositive motions. LCR 40(b)(8) provides,
“Motions for summary judgment, partial summary judgment, or dismissal are governed
by LCR 56.” LCR 56 lacks any requirement that a party file a memorandum or
documentary evidence when moving for summary judgment, partial summary judgment
or dismissal under CR 12. Rather, LCR 56 merely requires the filing of a motion.
Lynne’s motion to dismiss the second petition was not procedurally defective.
Alternatively, Phillip argues that because Lynne failed to file a financial
declaration, as required by LSPR 94.04(l)(2), the trial court should have denied her
motion to dismiss. Under LSPR 94.04(l)(2), both parties are required to file financial
declarations when one of the parties brings a motion for financial relief. Lynne concedes
she did not file a financial declaration in conjunction with her motion to dismiss.
Although Lynne made a request for attorney fees in her response to Phillip’s
second petition, she did not seek financial relief in her motion to dismiss. The final order
already granted Lynne financial relief. Her motion to dismiss the second petition was
merely an attempt to maintain the status quo. Because Lynne did not seek financial
relief, and the court did not order any financial relief when it granted her motion to
dismiss, the provisions of LSPR 94.04(l)(3), requiring the court to “deny the request,
continue or strike the hearing, and/or impose sanctions,” is inapplicable.
10 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Lynne’s motion to dismiss the second petition did not offend the local court rules
for the Superior Court of Spokane County.
WHETHER THE TRIAL COURT ERRED IN DISMISSING PHILLIP’S SECOND PETITION
Phillip contends that the record was sufficient to survive either a motion under
CR 12(b)(6) or CR 56. Phillip further asserts the court erred in dismissing the second
petition because Lynne failed to submit any supporting documentation, thus not meeting
her burden. For the reasons stated below, we decline review.
As an initial matter, we must decide whether to review the judge’s order denying
revision or the court commissioner’s order of dismissal. Generally, we review a superior
court judge’s ruling on revision, not the commissioner’s initial decision. In re Marriage
of Lyle, 199 Wn. App. 629, 633, 398 P.3d 1225 (2017). However, “[u]nder RCW
2.24.050, the findings and orders of a court commissioner not successfully revised
become the orders and findings of the superior court.” Maldonado v. Maldonado, 197
Wn. App. 779, 789, 391 P.3d 546 (2017).
Here, not only did the superior court judge deny Phillip’s motion to revise the
commissioner’s order, she expressly adopted the commissioner’s decision. The judge’s
order states, “the motion to revise is denied. The court adopts the oral ruling of Comm.
Pelc in full.” CP at 117. Consequently, the commissioner’s order became that of the
superior court judge.
11 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Next, we must decide whether to review the trial court’s application of
CR 12(b)(6) or CR 56. Lynne brought a motion to dismiss Phillip’s second petition
under CR 12(b)(6) and CR 56. In deciding Lynne’s motion, neither the commissioner
nor the judge articulated whether the motion was being granted under CR 12(b)(6) or
CR 56.
A motion to dismiss under CR 12(b)(6) should be granted only if it appears
beyond doubt that the petitioner cannot prove any set of facts, consistent with the
petition, to justify relief. Hipple v. McFadden, 161 Wn. App. 550, 556, 255 P.3d 730
(2011). When deciding a CR 12(b)(6) motion, the trial court must not consider matters
outside of the pleadings. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 297, 545 P.2d 13
(1975). If a trial court considers evidence and matters outside of the pleadings, the
CR 12(b)(6) motion converts to a CR 56(c) motion. CR 12(c); State v. LG Elecs., Inc.,
185 Wn. App. 394, 404, 341 P.3d 346 (2015).
Here, the commissioner considered evidence outside of Phillip’s initial pleading.
Among other documents, the commissioner examined Phillip’s first petition and his first
declaration. Because the commissioner considered evidence and matters outside of the
pleadings, the commissioner ineluctably decided the motion as a summary judgment
motion under CR 56.
12 No. 39342-9-III; No. 39557-0-III Smith v. Smith
We review a motion for summary judgment de novo. Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080 (2015). In deciding a summary judgment motion, the court must
consider the evidence and all reasonable inferences in the light most favorable to the
nonmoving party. Id. (citing Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301
(1998)). Summary judgment is appropriate only if there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Id. In reviewing an
order on summary judgment, we engage in the same inquiry as the trial court and
examine all the evidence presented to the trial court. Highline Sch. Dist. No. 401 v. Port
of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Folsom, 135 Wn.2d at 663.
On appeal, the appellant bears the responsibility of providing the reviewing court
with the precise record considered by the trial court. Tacoma S. Hosp., LLC v. Nat’l Gen.
Ins. Co., 19 Wn. App. 2d 210, 220, 494 P.3d 450 (2021). If an appellate court is hindered
from independently examining all of the evidence presented to the trial court, it cannot
properly accomplish its charge. Folsom, 135 Wn.2d at 663. Therefore, appellate review
of a summary judgment order requires the precise record considered by the trial court.
LeBeuf v. Atkins, 93 Wn.2d 34, 36, 604 P.2d 1287 (1980). Accordingly, we will
generally not review an alleged error if the relevant part of the record necessary for our
review is not provided. See State v. Mannhalt, 33 Wn. App. 696, 704, 658 P.2d 15
(1983).
13 No. 39342-9-III; No. 39557-0-III Smith v. Smith
In granting Lynne’s motion for summary judgment, the trial court relied heavily
on Phillip’s first petition and first declaration. The trial court employed a side-by-side
comparison of the documents from his first petition and second petition. In doing so, the
trial court concluded the record failed to show that a genuine issue of material fact
existed as to whether there had been a substantial change in circumstances sufficient to
support the second petition.
Because Phillip failed to provide the precise record, namely the documents related
to his first petition for modification,6 we lack the ability to independently examine all of
the evidence presented to the trial court. Therefore, we decline review of the alleged
error.
WHETHER THE TRIAL COURT ERRED WHEN IT FOUND PHILLIP IN CONTEMPT
Phillip argues the trial court erred when it found him in contempt because he was
unable to comply with the final order that required him to pay maintenance. We
disagree.
We review a trial court’s decision to enter a contempt order for abuse of
discretion. In re Marriage of Myers, 123 Wn. App. 889, 892, 99 P.3d 398 (2004). “A
trial court abuses its discretion by exercising it on untenable grounds or for untenable
6 Phillip designated Lynne’s first financial declaration.
14 No. 39342-9-III; No. 39557-0-III Smith v. Smith
reasons.” Id. at 892-93 (citing In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d
470 (1995)).
When a trial court enters a contempt order it must make findings of fact that
support its judgment. Marriage of James, 79 Wn. App. at 440. “We review the trial
court’s factual findings for substantial evidence and then determine whether the findings
support the conclusions of law.” Marriage of Myers, 123 Wn. App. at 893. “Substantial
evidence” is evidence contained in the record that would convince a “fair-minded,
rational person of the truth of the declared premise.” In re Marriage of Fahey, 164 Wn.
App. 42, 55, 262 P.3d 128 (2011).
In part, contempt is an intentional disobedience of any lawful judgment, decree, or
order. RCW 7.21.010(1)(b). The law presumes that one is capable of complying with an
order of the court. In re Pers. Restraint of King, 110 Wn.2d 793, 804, 756 P.2d 1303
(1988). Therefore, a demonstrated inability to comply is an affirmative defense. Id.
Here, the trial court found Phillip in contempt due to his intentional and willful
failure to make maintenance payments as required by the final order. The court found,
and the record supports, the existence of a valid court order that required Phillip pay
Lynne $2,200 per month in maintenance and COLAs. Phillip admittedly failed to
comply with the terms of the order. Rather than produce evidence of compliance, Phillip
15 No. 39342-9-III; No. 39557-0-III Smith v. Smith
insisted that Lynne disclose financial records to support her allegation that he was in
arrears.
Contrary to Phillip’s argument that he lacked the ability to comply with the final
order, substantial evidence supports the trial court’s finding that he had the ability to
comply and his disobedience was intentional, willful, and done in bad faith. Between
entry of the order and when Phillip filed the second petition, his income had increased,
not decreased as he claimed. Moreover, rather than attempting to pay maintenance,
Phillip put substantial resources toward being relieved of his support obligation. The
court found that rather than paying his maintenance obligation totaling $7,769, Phillip
opted to pay $7,0007 for two separate attorneys to file motions for discovery and to “do
anything but pay [the spousal obligation].” CP at 304. As reflected in his $2,495
monthly rental obligation, rather than conserve assets, Phillip increased his expenditures
to the detriment of his maintenance obligations.
As to Phillip’s argument that the trial court lacked authority to divide the military
pension or require him to pay the COLAs, the order on contempt does not run afoul of the
final order. The final order required Lynne to submit a DD-2293 form to the DFAS.
Until the DFAS directed payments to Lynne, Phillip was required to pay Lynne “her
share of the pension directly via allotment or direct deposit.” CP at 173. Due to a
7 The record shows Phillip paid his attorney a retainer of $4,000.
16 No. 39342-9-III; No. 39557-0-III Smith v. Smith
clerical error, the DFAS rejected Lynne’s submissions. Thereafter, Phillip declined to
sign the redrafted orders. The contempt order did not divide assets; rather, it enforced the
final order.
Next, Phillip asserts because Lynne sought financial relief, LSPR 94.04(l)(2)
required that she file a financial declaration. Because Lynne failed to file a financial
declaration, Phillip argues the court erred in awarding her attorney fees.
RCW 26.18.160 provides that “[i]n any action to enforce a support or maintenance
order under this chapter, the prevailing party is entitled to a recovery of costs, including
an award for reasonable attorney fees.” LSPR 94.04(b)(1) reads, “These rules apply to
matters filed under RCW . . . 26.18.” LSPR 94.04(l)(2) requires a party to file a financial
declaration when requesting financial relief. Under LSPR 94.04(l)(3), a “[f]ailure to file
financial documents for the motion hearing is a basis for the court to deny the request,
continue or strike the hearing, and/or impose sanctions.” The rule does not mandate the
court deny the request, continue or strike the hearing, or impose sanctions; it grants the
trial court discretion.
The trial court did not abuse its discretion in granting Lynne’s request for attorney
fees.
17 No. 39342-9-III; No. 39557-0-III Smith v. Smith
ATTORNEY FEES ON APPEAL
Both parties requested attorney fees on appeal. Phillip contends he has established
arguable merit in showing that there were uncontemplated substantial changes that
justified modifying his spousal maintenance obligation and that Lynne consistently failed
to follow procedural requirements below. Phillip also argues that he has a legitimate
need to have Lynne pay his attorney fees.
Lynne contends Phillip has not demonstrated any merit to his claims. Lynne
further argues that Phillip has not shown a need, citing to his continued funding of
litigation with the attempt of alleviating his maintenance obligation.
Under RAP 18.1(a) attorney fees may be granted on appeal provided the
applicable law grants a party the right to recover attorney fees before the Court of
Appeals. Under RCW 26.09.140, “[T]he appellate court may, in its discretion, order a
party to pay for the cost to the other party of maintaining the appeal and attorneys’ fees in
addition to statutory costs.” In considering an award of attorney fees under this statute,
we “must consider the parties’ relative need and ability to pay.” In re Marriage of
Shellenberger, 80 Wn. App. 71, 87, 906 P.2d 968 (1995). We also consider “the arguable
merit of issues raised on appeal.” In re Marriage of Leslie and Verhey, 90 Wn. App. 796,
807, 954 P.2d 330 (1998).
18 No. 39342-9-III; No. 39557-0-III Smith v. Smith
Here, Phillip’s appeal lacks merit. Based on Phillip’s failure to properly designate
the record, we were unable to review his alleged error related to the dismissal of his
second petition. As far as our review of the contempt order is concerned, Phillip willfully
opted to direct his resources toward litigation rather than paying his maintenance
obligation and has otherwise failed to conserve his resources. Indeed, the record before
us lacks any showing of a substantial change in circumstances that were not contemplated
when the final order was entered.
Based on the appeal being deficient in merit, Lynne’s financial need, and Phillip’s
ability to pay, we grant Lynne’s request for attorney fees.
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.
Cooney, J.
WE CONCUR:
Lawrence-Berrey, C.J. Pennell, J.