Opinion
No. 59612-8-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-3-01252-3, James A. Doerty, J., entered January 24, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Ellington and Leach, JJ.
Kenneth B. Kaplan appeals the trial court's award of attorney fees to Sheila Kohls arising from their disputes relating to the parenting plan regarding their children. Sheila Kohls cross-appeals the trial court's decision that she failed to show adequate cause for a hearing to modify the decision-making provision of their parenting plan.
A party seeking to modify a parenting plan shall submit, together with his or her motion, an affidavit setting forth facts supporting the modification and shall give notice, together with a copy of his or her affidavit, to other parties to the proceedings, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested modification should not be granted. RCW 26.09.270.
The trial court was well within its discretion to award to Kohls attorney fees for intransigence. However, it committed legal error in exercising its discretion on whether Kohls established adequate cause for a hearing. We affirm in part, vacate in part, and remand for further proceedings.
We grant Kenneth B. Kaplan's motion to supplement record dated March 24, 2008.
The court dissolved the marriage of Sheila Kohls and Kenneth Kaplan in 2005. Their agreed parenting plan gave Kaplan and Kohls joint decision-making power on major decisions for their son, Z.K., and their daughter, I.K. The parties acknowledged in this plan that their children needed mental health counseling and that I.K., age nine, needed to be evaluated for ADHD. In case of decision-making disputes, the parenting plan requires "mediation, and if no agreement is reached, arbitration by Larry Besk, or another agreed individual."
Several months after the entry of the order approving the parenting plan, Kaplan and Kohls disagreed over counseling and ADHD treatment for their daughter, I.K. Her teachers advised the parents that I.K. should be evaluated for ADHD and recommended several therapists. Kohls proceeded to set up an appointment with one of the recommended professionals, Dr. Suzanne Engelberg.
Kaplan objected and involved the parties' attorneys in the dispute. Eventually, he acquiesced and allowed I.K. to see Dr. Engelberg and agreed to pay his part for her therapy. Several months later, Kaplan stopped paying Dr. Engelberg's fees. He contended the treatment had continued too long, he had received no feedback from Dr. Engelberg, and believed her to be "antagonistic" toward him. Kaplan and Kohls also disagreed about whether I.K. should take medication for ADHD.
Kohls invoked the parenting plan's dispute resolution process. Kaplan refused to arbitrate issues and then cancelled the mediation and/or arbitration session the day before it was scheduled to occur. Kohls' attorney rescheduled an appointment for two weeks later. Kaplan agreed to the date, set forth new issues to be addressed, and informed Kohls he no longer wanted to mediate or arbitrate his objections to Dr. Engelberg. He also said that he would pay her past fees as set out in court orders. He did not pay.
Kohls moved for an order holding Kaplan in contempt of the order of child support. In response to her motion, Kaplan paid what was due. Accordingly, Kohls cancelled the contempt hearing, and the court entered an agreed order to reserve the issue of attorney fees for later determination.
Based on Kaplan's resistance to medicating I.K. for ADHD and his resistance to J.K.'s therapy, Kohls petitioned to modify the decision-making provision of the parenting plan. In her petition, she alleged that Kaplan used the joint decision-making power as a weapon that delayed necessary and important decisions for the children, especially regarding their healthcare. Kohls also put the reserved issue of attorney fees before the court.
A commissioner denied Kohls' motion for modification, concluding that she failed to show adequate cause for a hearing. She ordered Kaplan to pay Kohls $5,785.90 in attorney fees, subject to Kohls' counsel providing redacted copies of bills to Kaplan's counsel.
Both parties moved to revise the commissioner's order. The superior court denied both motions in one order. The order stated that a substantial change of circumstances is not established "when the parties continue to demonstrate the same conflict after the parenting plan as before." It further specified that "[Kaplan's] intransigence is well documented in the record."
Kaplan appeals the award of attorney fees to Kohls. Kohls cross-appeals the denial of a hearing on adequate cause to modify the parenting plan.
ATTORNEY FEE AWARD
Kaplan argues the court abused its discretion by awarding attorney fees to Kohls. Specifically, he challenges the basis of the award — intransigence. We hold that Kaplan's intransigence is well documented in this record and the amount of the award is proper.
A court may award attorney fees on the basis that one party's intransigence caused the other party to incur additional legal fees. Attorney fees based on intransigence have been awarded where a party engaged in obstruction and foot dragging or made the proceeding unduly difficult and costly. When awarding attorney fees on the basis of intransigence, a trial court must make findings sufficient to allow appellate review. We review the trial court's award of attorney fees for an abuse of discretion.
In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006).
Id.
Id.; In re Marriage of Greenlee, 65 Wn. App. 703, 708-09, 829 P.2d 1120 (1992).
In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999).
Here, the court commissioner awarded $5,785.90 in attorney fees to Kohls based on events leading up to the twice scheduled ADR proceeding to resolve disputes regarding the parenting plan. On revision, the superior court denied Kaplan's challenge to the award, stating in its order:
Although a contempt finding was avoided by the Petitioner's last minute compliance with the order his intransigence is well documented in the record.
Clerk's Papers at 585 (emphasis added).
The record contains substantial evidence to support this determination. In Kohls' declaration in support of her motion alleging intransigence, she alleged that Kaplan stopped paying his share of I.K.'s counseling costs, in violation of the child support order requiring him to pay 72 percent of the children's counseling expenses. After several attempts to get Kaplan to pay, she tried mediation and/or arbitration as required by the parenting plan. Kohls' attorney prepared materials, including responses to Kaplan's additional unrelated issues, and submitted them in advance of the session, as requested. Kaplan submitted no materials. Kaplan cancelled both scheduled mediation/arbitration sessions shortly before each session. Kaplan then withdrew his objection to I.K.'s counselor and agreed to pay his portion of treatment costs. Nearly a month later, Kaplan still had not paid what he owed, which compelled Kohls to move for contempt sanctions against him.
Clerk's Papers at 702.
Clerk's Papers at 702-03.
Clerk's Papers at 702.
Id.
Clerk's Papers at 703.
Id.
Id.
Kohls' counsel also submitted a declaration in support of the motion. She alleged that Kaplan's behavior made the mediation and/or arbitration process and efforts to get him to comply with his obligation to pay for I.K.'s therapy difficult and expensive. Specifically, Kaplan argued over whether mediation and arbitration could take place on the same day, added issues unrelated to I.K.'s counseling to the agenda requiring additional preparation, and cancelled mediation and/or arbitration sessions after preparation was complete. The commissioner based the $5,785.90 attorney fees award on evidence provided by Kohls' counsel in her declaration and in argument before the court.
Clerk's Papers at 599-600.
Clerk's Papers at 599, 622.
See Report of Proceedings (Jan. 8, 2007) at 14-16.
The superior court's conclusion that Kaplan was intransigent rests on tenable grounds. This record more than adequately demonstrates the type of conduct warranting an award of fees on this basis.
Kaplan argues that In re Marriage of Bobbitt requires the trial court to make specific findings of fact identifying the particular conduct that constituted intransigence. Kaplan misreads Bobbitt.
135 Wn. App. 8, 30, 144 P.3d 306 (2006).
There, the court did not make a finding of intransigence, but awarded $10,000 in attorney fees "for the necessity of having to pursue this action." Division Two of this court remanded, holding that a "trial court must provide sufficient findings of fact and conclusions of law" to provide an adequate record for appellate review. Our case satisfies the rule in Bobbitt because the trial court articulated its conclusion that Kaplan was intransigent in its order. A conclusion of intransigence, supported by the record, is all that is required.
Bobbitt, 135 Wn. App. at 30.
Id.
In a related argument, Kaplan contends that the court's "finding" that he avoided contempt by last minute compliance is insufficient to support the court's conclusion of intransigence. This argument is inapposite to the award of fees based on intransigence, and we need not discuss it further.
Without citing authority, Kaplan next argues that awarding attorney fees on the basis of his intransigence is inappropriate after his "successful fight" in defending the joint decision-making provision in the parenting plan. This argument, too, is inapposite to the basis of the award of fees. We need not discuss it further.
Finally, Kaplan contends that the award should be reversed because Kohls' counsel failed to produce redacted copies of billing records as required by the commissioner's order. But it is difficult to understand why counsel for Kohls would have made this information a part of the court file below. In view of this observation, it is likewise difficult to understand why such information would or could have been part of the record on appeal that is now before us. Thus, Kaplan's assertion is unpersuasive.
In any event, Kohls' counsel on appeal represented to this court at oral argument that this condition was met. We accept that representation from counsel, an officer of the court. We have granted Kaplan's motion to supplement the record, showing the billing records were provided to counsel on January 26, 2007.
ADEQUATE CAUSE FOR HEARING
Kohls argues the trial court abused its discretion in denying a hearing on her petition to modify the joint decision-making provision in the parenting plan. We hold that Kohls presented a prima facie case that entitled her to a hearing on her petition.
"The court may order adjustments to any of the nonresidential aspects of a parenting plan upon a showing of a substantial change of circumstances of either parent or of a child, and the adjustment is in the best interest of the child."
The party seeking modification of a parenting plan must submit with his or her motion an affidavit alleging facts to support the requested modification. Notice and a copy of affidavits must be provided to other parties. "The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing. . . ."
Id.
Id.
Adequate cause is shown where the court finds, "upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred" in the circumstances of either parent or of a child.
RCW 26.09.260, 270.
We review the trial court's adequate cause determination for an abuse of discretion. A court abuses its discretion when its decision, based on the facts and applicable law, is outside the range of acceptable choices.
In re Parentage of Jannot, 149 Wn.2d 123, 128, 65 P.3d 664 (2003).
In re Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005).
Here, Kohls alleged in her supporting affidavit that since entering into the parenting plan, Kaplan has made joint decision-making unworkable and detrimental to her and their children. She alleged Kaplan abused his joint decision-making power by refusing to agree, involving their attorneys in every matter that comes up, and refusing to participate in mediation and/or arbitration as required by the parenting plan when agreement cannot be otherwise achieved. She claims this behavior harms their children by preventing them from receiving therapy and treatment, which they need.
The superior court denied Kohls' motion for revision, stating:
The substantial change of circumstances required is not established when the parties continue to demonstrate the same conflict after the parenting plan as before. Difficulties in proceeding with the ADR provisions of the parenting plan should be addressed in a motion to enforce or in a motion for contempt.
Clerk's Papers at 580; see also Report of Proceedings (Jan. 8, 2007) at 14 (Commissioner's Oral Ruling); Clerk's Papers at 292 (Commissioner's Order).
In Selivanoff v. Selivanoff, the parenting plan at issue there included a provision that "upon agreement by plaintiff and defendant, the visitation rights can be extended without court approval." The court found that communication had broken down between the parents to the point of rendering the provision meaningless. It concluded that "[a] material change in condition can be deemed to occur where a provision in the original plan anticipates cooperation and that cooperation is not forthcoming."
12 Wn. App. 263, 265, 529 P.2d 486 (1974).
Id.
Id.
We agree that the record shows that the parties had a history of conflict. Presumably, that is one of the reasons why the parenting plan includes a provision for ADR with a specific person in the event of post-dissolution disputes.
We cannot agree that the conflict evidenced here is "the same conflict after the parenting plan as before." What is very troubling here is that notwithstanding the agreed mechanism for resolving disputes over parenting by ADR, there is evidence in the record that this mechanism may not be working as intended. Moreover, there is evidence in the record that the delays caused by the alleged ineffectiveness of the mechanism may have an adverse impact on the children.
For example, we need only point to the events leading up to the twice scheduled then cancelled ADR proceedings that served as a basis for the trial court's award of attorney fees for intransigence to illustrate the point. A general history of conflict between the parties, arguably, does not adequately address the more narrow question of whether the alleged inability to effectively use the ADR process constitutes a substantial change of circumstances warranting modification of the parenting plan.
To the extent that the agreed ADR mechanism is not working and there is adverse impact on the children, a substantial change of circumstances may exist to modify the plan. That, of course, is a decision for the trial court to make following a hearing on the question. This record also suggests there may be a fundamental change in the ability of the parties to cooperate from that anticipated in their agreed parenting plan. If so, the provisions of RCW 26.09.187 may also support modification of the agreed plan.
We express no opinion by our above comments as to how the trial court should resolve these questions at the hearing. But a hearing to address these issues is required.
Accordingly, we vacate the order to the extent it denies a hearing on the petition to modify and remand for further proceedings.
aTTORNEY FEES ON APPEAL
Kohls seeks attorney fees and costs for her cross appeal and for responding to Kaplan's appeal under RCW 26.09.140 and RAP 18.1 and 18.9. We award her fees, subject to her full compliance with the requirements of the RAPs.
A court, after considering the financial resources of both parties, may order one party to pay the other party's reasonable attorney fees associated with maintaining or defending a proceeding under Chapter 26.09 RCW. "An important consideration apart from the relative abilities of the two spouses to pay is the extent to which one spouse's intransigence caused the spouse seeking the award to require additional legal services."
In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989).
Here, both parties have submitted declarations on this issue. Having fully considered both, we conclude that an award of fees to Kohls, both for the appeal and cross appeal, is proper under the circumstances.
In conclusion, we affirm the superior court's order denying revision of the $5,785.90 in attorney fees to Kohls based on Kaplan's intransigence. We vacate the order to the extent it denied revision of the denial of Kohls' motion for a hearing. We remand for a hearing on her petition to modify the joint-decision making provision of the parenting plan. We order Kaplan to pay Kohls' attorney fees and costs associated with both his appeal and her cross-appeal.
WE CONCUR: