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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE THE PARENTAGE OF:                     )
                                            )       No. 67520-6-I
L.P., child                                 )
                                            )
                                            )       DIVISION ONE
JOLI MICHELLE PESEK, Mother                 )
                                            )
                      Petitioner,           )
                                            )       UNPUBLISHED OPINION
       and                                  )
                                            )
JAMES RYAN HEMANS, Father                   )
                                            ) 
                      Respondent.           )       FILED: April 23, 2012

       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.  

No. 67520-6-I/2

       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 
                                               2 

No. 67520-6-I/3

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 
                                               3 

No. 67520-6-I/4

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 

                                               4 

No. 67520-6-I/5

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 
                                               5 

No. 67520-6-I/6

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 
                                               6 

No. 67520-6-I/7

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 
                                               7 

No. 67520-6-I/8

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. 
                                               8 

No. 67520-6-I/9

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, 

                                               9 

No. 67520-6-I/10

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 
                                              10 

No. 67520-6-I/11

       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 
                                              11 

No. 67520-6-I/12

       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 
                                              12 

No. 67520-6-I/13

       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 

                                              13 

No. 67520-6-I/14

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 
                                              14 

No. 67520-6-I/15

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 

                                              15 

No. 67520-6-I/16

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.

       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. 

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.

       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

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No. 67520-6-I/17

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.1 Crosetto, 82 Wn. App. at 

565.

       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 Hemans' 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.

WE CONCUR:

       1 To the extent an award of attorney fees is based on grounds other than intransigence, the court 
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.
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