Opinion
No. 58459-6-I.
November 13, 2007.
Alfoster Garrett appeals the trial court's order regarding fees and child support adjustment following the court's resolution of his objection to his former wife's request to move their child's primary residence to Vancouver, B.C. We find no abuse of discretion on the part of the trial court and accordingly affirm.
FACTS
Alfoster and Brea Garrett are parents of Zavier Garrett. Brea is a Canadian citizen and Zavier was born in Canada. The Garretts lived together in Seattle for approximately six months after Zavier was born in 2000, but their marriage soon developed difficulties. After a series of separations and attempts to reconcile, the couple dissolved their marriage in 2004. By then, Brea had moved to Shoreline and Zavier's primary residential placement was with her.
The parties share the same last name. For the sake of clarity, first names are used in this opinion. No disrespect is intended.
In July 2005, Brea provided notice of her intent to relocate to Vancouver, B.C. Alfoster filed an objection, which was litigated at a five-day trial in December 2005. Alfoster, a criminal defense attorney, represented himself.
At the conclusion of the trial, the court found Alfoster had not met his statutory burden of showing why Brea's request to relocate should not be granted. The court reserved ruling on the resulting parenting plan, suggesting that the parties attempt to reach agreement. The parties were unable to do so, and the court scheduled a hearing in February 2006 to resolve the remaining issues. At the conclusion of the February hearing, the court entered a parenting plan and set a schedule for Brea to bring her claim for attorney fees.
In March 2006, the court ruled that Alfoster's intransigence had increased the legal services Brea needed to resist his objection, but it rejected Brea's contention that his intransigence had permeated every aspect of the litigation. The court therefore declined to award Brea's total claimed fees exceeding $30,000 and directed Brea to submit findings supporting fees for only the portions of the litigation affected by Alfoster's intransigence. Brea did so, claiming $12,690 in fees. After considering further affidavits and making its own adjustments, in June 2006 the court awarded Brea fees in the amount of $8,963.75. The court also added a restriction to an earlier order allowing Alfoster to move to adjust his support obligation sooner than normally allowed by statute.
Alfoster appeals, challenging only the June 2006 order.
ANALYSIS
Alfoster first challenges the award of attorney fees. Whether an award of attorney fees should be allowed in a dissolution proceeding, and the amount thereof, is a matter within the sound discretion of the trial court. In re Marriage of Thomas, 63 Wn. App. 658, 671, 821 P.2d 1227 (1991).
Although Brea has not filed a response brief, the standard of review and the responsibility of this court are the same as in any other appeal. Adams v. Dep't of Labor Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995); In re Marriage of Gilbert, 88 Wn. App. 362, 945 P.2d 238 (1997).
Preliminarily, we note two serious deficiencies in Alfoster's attempt to show the trial court abused its discretion. First, he has not provided this court a complete record of the trial proceedings. As the appellant, Alfoster has the burden of providing a sufficient record from which this court may review the issues. See Starczewski v. Unigard Ins. Group, 61 Wn. App. 267, 276, 810 P.2d 58, review denied, 117 Wn.2d 1017 (1991). Second, the citations to the clerk's papers in Alfoster's brief are all incorrect, which is significant as most of the pretrial and posttrial proceedings were conducted without oral argument. Appellate courts are not required to search the record to locate the portions relevant to a litigant's arguments. Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966). In the interests of attempting to resolve the case on the merits rather than on noncompliance with procedural requirements, we nonetheless, where possible, have reviewed Alfoster's claims on the merits. Doing so, we find no evidence that the trial court abused its discretion.
Alfoster first contends that even if the record supports the trial court's finding that he engaged in intransigent behavior, an award of fees is improper because Brea received financial assistance from her fiancé in paying her attorney. But the question of whether such a fee award is proper depends only on whether one spouse's intransigence caused the spouse seeking the award to require additional legal services. See In re Marriage of Harshman, 18 Wn. App. 116, 128, 567 P.2d 667 (1977); Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969). When intransigence is established, the financial resources of the spouse seeking the award are irrelevant. See In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989); (citing Eide, 1 Wn. App. at 445).
Alfoster also contends the court failed to adequately articulate the basis for its award of fees to Brea. Appellate courts exercise a supervisory role to ensure that the trial court's discretion to award fees is exercised on articulable grounds. Mahler v. Szucs, 135 Wn.2d 398, 433-35, 957 P.2d 632, 966 P.2d 305 (1998). A fee award therefore must be supported by findings of fact and conclusions of law sufficient to establish a basis for review. Mahler, 135 Wn.2d at 433-35; Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 715, 9 P.3d 898 (2000); Absher Constr. Co. v. Kent Sch. Dist. 415, 79 Wn. App. 841, 848, 917 P.2d 1086, 905 P.2d 1229 (1995). The determination of such an award need not be an unduly burdensome proceeding for the court or the parties; however, an explicit hour-by-hour analysis of each lawyer's time sheets is unnecessary as long as the award is made with a consideration of the relevant factors and reasons sufficient for review are given for the amount awarded. Absher, 79 Wn. App. 841.
Alfoster argues that the trial court's final order failed to explain how fees were appropriate based on specific acts of intransigence. We disagree. Alfoster overlooks that the court's seven-page June order expressly incorporated its four-page March order by reference. In the March order, the court indicated Brea could claim fees for services related to
discovery delays, failure to mediate, lack of participation in preparing a joint statement of evidence and exhibit notebooks, failure to timely disclose witnesses and exhibits and time spent at trial litigating those issues, unnecessary or improper motion practices, failure to comply with LR 7 in connection with the post-trial presentation hearing, lateness for hearings, and the like.
Clerk's Papers (CP) at 423-24 n. 6. Reading the March order together with the June order's detailed list of individual services for which the court either approved or disapproved fees, we find the trial court sufficiently indicated how it calculated the total award.
Finally, Alfoster contends that the record contains no evidence of intransigence on his part. While he acknowledges making procedural errors before, during, and after trial, he contends those were merely the product of his unfamiliarity with the practice of civil law, particularly family law, and Brea's counsel's unreasonably aggressive litigation tactics.
Part of his argument in this regard, however, cannot be considered here because Alfoster attempts to present it only by improperly incorporating by reference arguments made in the trial court. Br. of Appellant, at 15. See U.S. West Communications, Inc. v. Washington Utils. Transp. Comm'n, 134 Wn.2d 74, 111-12, 949 P.2d 1337 (1997) (parties may not incorporate by reference arguments raised only in the trial court); State v. Kalakosky, 121 Wn.2d 525, 540 n. 18, 852 P.2d 1064 (1993) (same).
We note that Alfoster's citations to the clerk's papers in his brief for this purpose are incorrect in any event.
As for the arguments Alfoster articulates in his brief, to the extent we can address them despite the deficiencies in the record, we find ample evidence that Alfoster bore responsibility for the delays and instances of noncompliance with court rules that formed the basis of the fee award. That Alfoster contested some of this evidence does not show that the trial court abused its discretion because we defer to the trial court's resolution of disputed facts. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). Moreover, the extent of Alfoster's admitted and repeated errors was such that the trial court was not required to accept his innocent explanations and, instead, could properly find his behavior amounted to intransigence for which fees should be awarded. And despite Alfoster's contention that Brea's counsel "took full advantage" of his "procedural ignorance and civil practice inexperience," Br. of Appellant, at 22. The record reflects no impropriety by counsel in zealously representing her client. Alfoster has not shown that the trial court abused its discretion in awarding fees.
For example, the portion of the record Alfoster provides makes it clear that at some earlier point in the trial, the court excluded some of his proposed witnesses from testifying. But Alfoster did not provide the portion of the record in which the court found this was necessary because of the extent of his violations of the court rules and the resulting prejudice to Brea.
Alfoster challenges a second aspect of the June order. At the February 2006 hearing, the court ruled that because the evidence of Alfoster's current income at trial was scant, he would have the opportunity to move for an adjustment in August 2006, earlier than normally allowed by statute. In the June order however, the court ruled that because of his intransigent behavior, Alfoster was required to become current in his support obligations and pay the judgment for attorney fees before bringing such a motion. Alfoster now contends that this restriction conflicts with his right to move for modification of support under RCW 26.09.170(5)(a) if the support order causes him a severe economic hardship. This argument is frivolous. Alfoster ignores the actual language of the June order, which expressly exempted from the new restriction any opportunities to adjust support that were "otherwise provided by statute." CP at 455.
The challenged condition clearly does not limit Alfoster's right to request modification of the support order under RCW 26.09.170(5)(a) or any other statute.
We affirm the trial court in all respects.