Opinion
No. 67520-6-I
04-23-2012
IN RE THE PARENTAGE OF: L.P., child JOLI MICHELLE PESEK, Mother Petitioner, and JAMES RYAN HEMANS, Father Respondent.
UNPUBLISHED OPINION
Spearman, A.C.J. — In this action for modification of a parenting plan, Joli Pesek appeals the parenting plan for her son L.P. under which he spends a majority of his time with his father, James Hemans. The record here shows Pesek's home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change. The record also shows L.P. was integrated into Hemans' family with Pesek's consent in substantial deviation from the original parenting plan. As such, we reject Pesek's arguments and affirm the order on modification, the final parenting plan, and the order of child support.
We vacate, however, the trial court's award of attorney fees and remand for further proceedings. Although the record supports the court's finding of Pesek's intransigence, nothing in the record links the intransigence to the $15,000 awarded by the court. Affirmed in part, reversed in part, and remanded for further proceedings.
FACTS
L.P. was born to Joli Pesek and James Ryan Hemans on October 3, 2000. Pesek and Hemans were never married to each other. Hemans learned he was L.P.'s father after genetic testing sometime around L.P.'s second birthday. Hemans gradually increased his time and involvement with L.P. after learning L.P. was his son. Pesek and Hemans filed an agreed parenting plan in 2004 when L.P. was three and a half years old. The parties more or less adhered to the schedule in that plan, which gave Hemans residential time with L.P. every Wednesday and every other weekend. At the time this parenting plan was filed, Pesek lived in her Mill Creek home and worked in the wholesale auto business. Pesek later moved with L.P. to Soap Lake. Hemans lived in Lake Stevens.
Over a period of several years starting in 2005, Pesek engaged in what Hemans believed was an extended series of poor decisions that made her home environment particularly unstable and negatively impacted L.P. These decisions, which are described in detail below, include multiple romantic relationships that have ended with violence, criminal charges, or domestic violence restraining orders; repeatedly harassing Hemans via text messaging; violating multiple court orders; driving while intoxicated with L.P. in the car; exposing L.P. to the details of their legal battle; refusing to permit L.P. to play sports or receive dental care for the purpose of gaining advantage in the legal proceedings; and repeatedly placing Pesek's own interests over those of L.P.
In November 2008, Pesek was arrested and jailed for assaulting her boyfriend with knives. While Pesek was in jail, the parties agreed L.P. would leave Soap Lake, live with Hemans in Lake Stevens, and attend school at Mount Pilchuck Elementary. Hemans testified the parties agreed he would stop paying Pesek child support, given L.P. was living with Hemans full time.
By the time L.P. moved to Lake Stevens, Hemans was married and had a five-year-old son, T.H. By all accounts, L.P. began to flourish in Hemans' home. According to Hemans, L.P. rides the bus to Mount Pilchuck Elementary with his friends. He has become very talkative, outgoing, proud of his accomplishments in school, and is coming out of his shell. He loves playing in the cul-de-sac with the neighborhood kids and being a big brother. Additionally, L.P.'s grades at Mount Pilchuck improved from the grades he received at Soap Lake. According to Hemans, for much of the time after L.P. moved to Lake Stevens, Pesek's visits with L.P. were "very sporadic"; sometimes "two to three weeks" would elapse between them.
In June 2010, just three weeks before the end of the school year, Pesek told Hemans that L.P. was not going to live with him anymore; that she was coming to get him; that it wasn't important that L.P. finish out the school year at Pilchuck. Pesek repeatedly told Hemans he should get an attorney. On June 22, 2010, Hemans filed a petition to modify the parenting plan and order of child support. In the petition, Hemans sought primary care of L.P., alleging:
The custody decree/parenting plan/residential schedule should be modified because a substantial change of circumstances has occurred in the circumstances of the child or the nonmoving party and the modification is in the best interest of the child and is necessary to serve the best interest of the child. This request is based on the factors below.
The child has been integrated into my family with the consent of the other party in substantial deviation from the decree/parenting plan/residential schedule.
The child's environment under the custody decree/parenting plan/residential schedule is detrimental to the child's physical, mental or emotional health and the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.
On August 5, 2010, Hemans obtained a temporary parenting plan, under which L.P. resided with him a majority of time, until the modification petition was heard. Pesek was permitted to see L.P. every Wednesday and alternating weekends. Hemans also obtained an order suspending his obligation to pay Pesek child support until the modification petition was heard. Pesek began harassing Hemans in text messages, and Hemans obtained a temporary restraining order. Pesek continued to send Hemans harassing text messages. She also failed to return L.P. when her visitation was over. Hemans had to enlist the help of the Lake Stevens' police department to get Pesek to return L.P. The trial court held Pesek in contempt for violating both the temporary restraining order and the temporary parenting plan.
At trial, Hemans testified about Pesek's unstable home environment, erratic behavior, and poor decision-making. He also called the guardian ad litem as a witness. Generally, the guardian ad litem testified in a manner consistent with Hemans' testimony, i.e., she testified that Pesek's home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change. Additionally, the guardian ad litem's report indicated that L.P. had been integrated into Hemans' family with Pesek's consent in substantial deviation from the original parenting plan. Hemans requested that any support that had accrued under the 2004 order of child support be "basically wiped out."
Pesek was unrepresented by counsel at trial and testified in the narrative. Among other things, she disputed that she had agreed to L.P. permanently residing with Hemans a majority of the time, and she claimed that she never said some of the statements attributed to her in the report of the guardian ad litem. She did not call other witnesses.
The trial court granted Hemans' petition for modification, finding L.P. had been integrated into Hemans' family with Pesek's consent in substantial deviation from the original parenting plan. It also found that Pesek's home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change. The court largely adopted Hemans' proposed final parenting plan, with L.P. residing a majority of time with Hemans. The court adopted Hemans' proposed order of child support. The order of support imputed income to Pesek, obligated her to make a transfer payment of $371 per month to Hemans' household, and eliminated Hemans' obligation to pay back support under the prior order. The court also awarded attorney fees to Hemans, "for the mother's intransigence throughout these proceedings." Pesek appeals the order on modification, the order awarding attorney fees and the judgment.
DISCUSSION
"'Custodial changes are viewed as highly disruptive to children, and there is a strong presumption in favor of custodial continuity and against modification.'" In re Marriage of Taddeo-Smith and Smith, 127 Wn. App. 400, 404, 110 P.3d 1192 (2005) (quoting In re Marriage of Shryock, 76 Wn. App. 848, 850, 888 P.2d 750 (1995)). "With this policy in mind, RCW 26.09.260 was designed to favor continuity and disfavor modification." Taddeo-Smith, 127 Wn. App. at 400 (citing In re Marriage of Thompson, 32 Wn. App. 418, 421, 647 P.2d 1049 (1982)).
RCW 26.09.260 provides in relevant part:
(1) Except as otherwise provided ... the court shall not modify a prior custody decree or parenting plan unless it 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 the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interest of the child.
(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:
. . . .
(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan; [or]
(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child . . . .
Here, the trial court found L.P. had been integrated into Hemans' family with Pesek's consent in substantial deviation from the original parenting plan. It also found that Pesek's home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change. Pesek challenges these findings.
We review the superior court's findings to determine if they are supported by substantial evidence. Substantial evidence is that sufficient to persuade a fair minded person of the finding's truth. City of Tacoma v. William Rogers Co., 148 Wn.2d 169, 191, 60 P.3d 79 (2002). There is a presumption in favor of the trial court's findings, and the party claiming error has the burden of showing that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990). An appellate court may not substitute its evaluation of the evidence for that made by the trier of fact. Goodman v. Boeing Co., 75 Wn. App. 60, 82-83, 877 P.2d 703 (1994). "The substantial evidence standard is deferential and requires the appellate court to view all evidence and inferences in the light most favorable to the prevailing party." Lewis v. Dep't of Licensing, 157 Wn.2d 466, 468, 139 P.3d 1078 (2006) (quoting, State v. Pierce County, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)).
Integration into Hemans' family with Pesek's consent. Pesek contends the trial court erred in finding consent to permit L.P. to integrate into Hemans' family because "all parties" had agreed the living arrangement was temporary. We disagree. "'Consent' refers to a voluntary acquiescence to surrender of legal custody." In re Marriage of Timmons, 84 Wn.2d 594, 601, 617 P.2d 1032 (1980). "Consent may be shown 'by evidence of the relinquishing parent's intent, or by the creation of an expectation in the other parent and in the children that a change in physical custody would be permanent.'" Taddeo-Smith, 127 Wn. App. at 406-07 (quoting Timmons, 84 Wn.2d at 601). "The children's views as to where 'home' is, and whether the environment established at each parent's residence is permanent or temporary are significant in determining whether 'consent' and 'integration' are shown." Timmons, 84 Wn.2d at 601. "While time spent with each parent is not determinative, it is a factor." Id.
Here, it is undisputed that L.P. resided primarily with Hemans starting in November 2008, and was still there when Hemans filed his petition for modification in June 2010. Hemans testified that he and Pesek "both decided" it would be better to have L.P. in Hemans' household. According to Hemans, Pesek's visits were "very sporadic" and sometimes "two to three weeks" would elapse between them. Additionally, L.P. sees Hemans' Lake Stevens house as his home. The sealed report of the guardian ad litem contains evidence that L.P. is happy with his current schedule, wants to remain in Lake Stevens, is attached to Hemans' home, has become part of Hemans' family and neighborhood, feels he belongs at Hemans' home, and does not want to change these circumstances. The guardian ad litem also believes Pesek recognized the environment she provided was detrimental to L.P.'s physical and emotional wellbeing, and as such she knowingly agreed to have L.P. reside primarily with Hemans.
Pesek argues her situation is analogous to two cases where appellate courts have held children were not integrated into the other parent's home. But those cases are factually and legally distinct from the situation here. In George v. Helliar, 62 Wn. App. 378, 814 P.2d 238 (1991), the father went to the grandmother's house, took the child without telling the mother, and moved the child to his home in British Columbia. Helliar, 62 Wn. App. at 380. The mother then made several failed attempts to retrieve the child from British Columbia. Id. The father petitioned to modify the parenting plan to have the child reside primarily with him, and the trial court granted the petition. This court reversed, both because the evidence showed the father took the child to another country without ever consulting the mother and because the trial court failed to make any finding at all about the mother's consent. Id. at 383-84.
In Taddeo-Smith, the mother was hospitalized following a serious car accident in which she was paralyzed from the chest down. Taddeo-Smith, 127 Wn. App. at 403. The parents agreed the father would care for the children "while [the mother] was hospitalized." Id. Just three weeks after the accident, however, the father filed a petition for modification of the parenting plan seeking to change the primary residence of the children, claiming they had been integrated into his home with the mother's consent. Id. The superior court granted the petition. Id. at 403-04. This court reversed. Even though it was undisputed that the parents agreed the father's care was to be temporary, the superior court mistakenly believed consent to temporary care was sufficient:
[T]he court's conclusion was not based on a finding that [the mother] voluntarily acquiesced to a surrender of legal custody [sic], but on [the mother's] agreement that [the father] should care for the children while she was hospitalized and incapable of caring for them . . . .Id. at 406.
In Helliar and Taddeo-Smith, the evidence of lack of consent was undisputed, unlike this case. Although Pesek points to her own testimony that the parties agreed the arrangement was temporary, we defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence and credibility of the witnesses. Snyder v. Haynes, 152 Wn. App.774, 779, 217 P.3d 787 (2009) ("We defer to the trial court's determinations on the persuasiveness of the evidence, witness credibility, and conflicting testimony"). Here, viewing the above-described evidence in a light most favorable to Hemans, substantial evidence supports the trial court's finding that L.P. had been integrated into Hemans' family with Pesek's consent in substantial deviation from the original parenting plan. Lewis, 157 Wn.2d at 468.
Home environment detrimental to L.P. Pesek also contends the trial court erred in finding her home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change. We disagree. The evidence, viewed in a light most favorable to Hemans, overwhelmingly supports the trial court's findings on this issue:
Pesek kept L.P. home from kindergarten whenever she felt he needed a break, and as such, he was absent 16 days and tardy 31 days.
• L.P. was absent 13 days from first grade and tardy 39 days.
• Pesek went to the house of her former fiancé, Cale Urbick, at 3:00 a.m. where she saw him with another woman. After they argued, Urbick attempted to leave in a truck and apparently damaged Pesek's car. Pesek then engaged in a car chase, described by the guardian ad litem as Pesek driving dangerously in the wrong lane. Urbick obtained a domestic violence protection order against Pesek in February 2008.
• Pesek sought outpatient treatment for Post Traumatic Stress Disorder following her breakup with Urbick.
• In April 2008, while L.P. was in the car with her, Pesek was arrested for DUI after drinking at a barbeque from 5:00 p.m. to 11:00 p.m. The charge
was later dismissed. At trial, Pesek claimed she was constantly pulled over for absolutely no reason and harassed because she was driving a brand new Escalade.
• Pesek dated "Cody", a man from Moses Lake, who Pesek described as extremely violent and an abusive alcoholic. L.P. was frequently with Pesek and Cody. L.P. told Hemans that he heard a lot of fighting between Cody and his mom and that he didn't like Cody. In November 2008, during a fight, Pesek threatened Cody with a butcher knife. Pesek was arrested and jailed for assault. At Cody's request, charges against Pesek were later dropped.
• Pesek began dating "Yuri" in December 2008. She told Hemans many times that she believed Yuri was a drug dealer. Yuri and Pesek worked together wholesaling vehicles. Together they relocated her business to Snohomish. In April 2010, while in Eastern Washington on business with Pesek, Yuri got extremely drunk, stole Pesek's car, her money and the gun that she kept in her vehicle. He later broke into her Mill Creek home. Pesek obtained a domestic violence protection order against Yuri.
• Pesek admitted herself to Stevens Hospital for partial hospitalization for "trauma" after the incident with Yuri.
• On June 23, 2010, a court commissioner ordered that, pending a hearing on Hemans's motion for modification, L.P. remain in Hemans's primary care. Pesek told Hemans she let L.P. read the court pleadings.
• Pesek began sending Hemans numerous texts, many of which were threatening in nature on the cell phone line he uses for business. The sheer number, as many as 60-80 texts sent in one day, and the threatening tone of the continuing texts from Pesek prompted Hemans to obtain a temporary restraining order on August 23, 2010.
• Pesek violated the restraining order, sending Hemans at least 175 texts in the week after being restrained. The nature of the texts was again threatening: "Even if I lose, the process is going to be a long and painful one. I will take you to court every month"; "I could get kicked out of court every time you have to pay to go every time"; "Looks like disaster and major trauma and crisis is not ending anytime soon!";"The more you torture me, threaten me with my son, the more psycho I get. So, keep it up"; "Your misery hasn't even began."
• On August 25, 2010, Pesek refused to return L.P. to Hemans in violation of the temporary parenting plan, telling him, among other things, he'd have to bring a SWAT team to get L.P. Hemans was forced to enlist the Lake Stevens police department to get L.P. back the next day. An officer took a report at Hemans's home, inspecting "about one hundred plus messages from her. The messages ranged from somewhat suicidal, to threatening, to just plain harassing in sheer numbers . . . ." The officer issued a citation to Pesek for violation of restraining order, and gave her the choice of returning L.P. to Hemans or being charged with custodial interference. In an order filed 9/29/10, the court found Pesek in contempt for violating both the temporary restraining order and the temporary
parenting plan.
• Pesek underwent outpatient therapy at the Meier Clinics from January 11, 2011 to February 1, 2011. While in treatment she was diagnosed with generalized anxiety disorder, post-traumatic stress disorder, obsessive compulsive disorder, and panic disorder, along with borderline, histrionic and narcissistic traits.
• While in treatment at the Meier Clinics, Pesek continued to send threatening text messages to Hemans, in violation of both the August 23, 2010 restraining order and the contempt order. At a February 24, 2011 review hearing on the contempt order, the court found Pesek continued to violate the previous orders.
• Shortly after Hemans filed for modification, Pesek refused to allow L.P. to play soccer with the team that Hemans had arranged. Hemans agreed to each alternative team that Pesek suggested, only to have Pesek change her mind at the last moment. L.P. missed the soccer season. By January 2011, Pesek still refused to allow L.P. to play. She attempted to extort Hemans by telling him that L.P. could play soccer only if Hemans agreed to "50/50" residential time.
• Beginning in 2010, Hemans tried to start orthodontic treatment for L.P. Pesek refused to allow L.P. to see the orthodontist recommended to Hemans in Lake Stevens. Hemans agreed that L.P. could see Pesek's family orthodontist. Pesek refused, however, to identify her family orthodontist for over a year, and as such, Hemans scheduled a visit with the Lake Stevens orthodontist. Pesek again refused to allow this visit, insisting that orthodontia treatment wait until after this modification trial.
• L.P. cut his elbow while Hemans was out of town. Hemans's wife and his parents attended to the injury without incident. Pesek was irate and called the Lake Stevens Police, alleging ongoing abuse in Hemans's household. She requested that an officer conduct a well-child check at L.P.'s school. Hemans testified that after the police officer talked to L.P. and saw his elbow, the officer was very unhappy, the school counselor was upset and L.P. was very embarrassed to be pulled out of class. Pesek continued to berate Hemans about the incident, screaming at him over the telephone.
• L.P. missed out on most of his school choir performance when Pesek did not get him to the event on time. With L.P. in the car, Pesek loudly blamed Hemans, screaming at him over the phone en route to the event.
• L.P. was excited that his step-mother and brother would accompany him on a field trip to the zoo. His step-mother stepped aside when Pesek became upset about not going. Pesek did not make it to school on time to accompany L.P. She showed up at the zoo halfway through the field trip.
• According to the guardian ad litem, Pesek speaks with friends and family on the phone for hours about whatever she is upset about, while L.P. is off entertaining himself-within earshot. The guardian ad litem described this as "constant verbal haranguing" that is damaging to L.P.'s psychological development, especially given it is frequently about family
members - people to whom L.P. is emotionally attached.
In short, the evidence viewed in a light most favorable to Hemans shows Pesek's home environment has been particularly unstable. Her relationships after the final parenting plan was entered, have ended with violence, criminal charges, and domestic violence restraining orders. She has repeatedly harassed Hemans and violated multiple court orders. Moreover, since permitting L.P. to live with Hemans, Pesek has repeatedly placed her own interests over those of L.P. The trial court did not err in finding Pesek's home environment was detrimental to the emotional, physical, or psychological health of L.P., and that the harm likely to be caused by a change in L.P.'s environment was outweighed by the advantage of a change.
Order of child support. Pesek argues the trial court erred in imputing income to her for purposes of the order of child support. We defer to the trial court's discretion in child support decisions unless that discretion is exercised in an untenable or unreasonable way. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000). "This court will not substitute its own judgment for that of the trial court where the record shows that the trial court considered all relevant factors and the award is not unreasonable under the circumstances." In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002) (quoting In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807 (1990)).
A court will impute income to a parent for purposes of child support when the parent is voluntarily unemployed or underemployed. RCW 26.19.071(6). "The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors." Id. Pesek contends there is "no evidence" in the record that her unemployment was voluntary. We disagree. The record shows Pesek told the guardian ad litem she was unemployed only because she chose to wait until the conclusion of the custody litigation before returning to work. The evidence thus shows Pesek was voluntarily unemployed, and the trial court did not err in imputing income to Pesek.
Pesek next argues the trial court erroneously suspended Hemans' child support obligation. But Pesek bases this argument on the assumption that it was error to award Hemans' primary custody, an issue we resolved against Pesek above. We also reject Pesek's contention that it was error to eliminate back support owed under the 2004 parenting plan. She cites a single case, In re Marriage of Cummings, 101 Wn. App. 230, 6 P.3d 19 (2000) for the proposition that "[r]etroactive child support adjustments are highly disfavored and will not be granted except in unusual circumstances." In Cummings, the father made each and every payment required by the order of child support, even beyond his son's emancipation date. The mother waited 12 years, and then sought to retroactively increase the amount of child support the father was to have paid over the years on grounds that the two failed to exchange tax returns. Cummings, 101 Wn. App. at 234-35. Cummings is unlike this case and is of no help to Pesek.
Moreover, Pesek makes no attempt to explain why, under the circumstances presented here, i.e., Hemans being the full-time caregiver to L.P., it was inappropriate for the trial court to relieve Hemans of the support that accrued during that period of time. Pesek simply cites Cummings and provides no argument. An appellant must provide "argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record." RAP 10.3(a)(6). We reject Pesek's argument on this issue.
Attorney Fees. Pesek argues the trial court abused its discretion by awarding fees and failing to determine whether the fees awarded were reasonable. The decision to award attorney fees is within the trial court's discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996). The party challenging the trial court's decision bears the burden of proving the trial court exercised its discretion in a way that was "'clearly untenable or manifestly unreasonable.'" Id. (quoting In re Marriage of Knight, 75 Wn. App. 722, 726, 880 P.2d 71 (1994)). In family law cases, the trial court may award attorney fees under RCW 26.09.140, which provides in relevant part:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorneys' fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.Generally, the trial court must first balance the needs of the spouse requesting them against the ability of the other spouse to pay. Crosetto, 82 Wn. App. at 563. The court, however, may alternatively award fees if one spouse's intransigence caused the spouse seeking a fee award to require additional legal services. Id. (citing In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989)). Intransigence is "demonstrated by litigious behavior, bringing excessive motions, or discovery abuses." In re Marriage of Wallace, 111 Wn. App. 697, 710, 45 P.3d 1131 (2002). If intransigence is established, the financial resources of the spouse seeking the fees are irrelevant. Crosetto, 82 Wn. App. at 563 (citing Morrow, 53 Wn. App. at 590).
Here, the trial court awarded $15,000 in attorney fees based on Pesek's intransigence:
I will add to that $15,000 in attorney fees as a judgment against the mother payable to Ms. Bailey for the mother's intransigence throughout these proceedings. I won't belabor all of the details of that. But I can't think of a clearer example of parental intransigence and an effort at alienation of the affections of a minor child than to take a fairly minor incident where [L.P.] got hurt, received appropriate medical intervention, and using that as an example to try to launch a CPS investigation, police intervention and the like with accusations of parental unfitness, abuse, and neglect.The court's finding of intransigence is amply supported by the record, which shows Pesek's erratic behavior and abusive use of conflict cause multiple unnecessary hearings, pleadings, and motions for restraining orders, violations of restraining orders, and contempt. As such, the court did not abuse its discretion in awarding attorney fees for Pesek's intransigence.
Some attorney fees obviously would have been incurred in bringing a petition for modification of a support order, Parenting Plan and the like, but an inordinate amount of the expense in this case was in responding to the mother's pleadings, inaction, contempt, reconsideration, revision and the like.
Although an award of fees was appropriate, we must nevertheless vacate the fee award and remand for further proceedings regarding the amount of the award. We can find nothing in the record linking Pesek's intransigence to the $15,000 awarded by the trial court. The only evidence before us on this issue is Hemans' testimony that he had been billed, pre-trial, $21,403.55 by his attorney. On remand, the trial court should consider what attorney fees and costs were incurred as a result of Pesek's intransigence. The fee award should be segregated, separating those fees incurred because of intransigence from those incurred by other reasons, and the court should make findings and conclusions on this issue to permit review. Crosetto, 82 Wn. App. at 565.
To the extent an award of attorney fees is based on grounds other than intransigence, the c< should also enter findings regarding Heman's need for such an award and Pesek's ability to pay it. Mattson, 95 Wn. App. at 604. No such findings need be made for an award of attorney fees based on intransigence. Id.
Finally, Hemans seeks fees and costs incurred on appeal. The trial court found Pesek was intransigent below. Where an intransigent party appeals the result, this justifies an award of fees and costs on appeal. Wallace, 111 Wn. App. at 710 (citing In re Marriage of Mattson, 95 Wn. App. 592, 606, 976 P.2d 157 (1999) ("[A] party's intransigence in the trial court can also support an award of attorney fees on appeal"). As such, we grant Hermans' requests for reasonable attorney fees and costs on appeal.
We affirm the order on modification, the final parenting plan, and the order of child support. We vacate, however, the attorney fee award and remand for further proceedings regarding the amount of the award. Affirmed in part, reversed in part, and remanded.
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WE CONCUR:
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