IN RE: the Marriage of KENNETH KAPLAN (2010)

appeals, arguing that the trial court's findings of fact denying her petition for modification of the parenting plan are not supported by substantial evidence.   Because the trial court did not abuse its discretion by denying fees to Kaplan and there is no basis for his other claims for relief, we affirm those portions of the orders on appeal.   Similarly, because the critical findings of fact on the petition for modification are either supported by substantial evidence or are based on unreviewable credibility determinations, we affirm the remaining portions of the orders on appeal.

Kenneth Kaplan and Sheila Kohls were married in May 1992.   The court dissolved their marriage in March 2005.   Kohls and Kaplan have two children, a daughter, I.K., and a son, Z.K. At the time of the dissolution decree, the court also approved an agreed parenting plan, designating Kohls as the primary residential parent and providing for joint decision-making on major decisions.   The dispute resolution provisions of the parenting plan provide that if the parties cannot reach agreement, they are first required to participate in mediation with either a designated mediator or another agreed individual.   If mediation fails, they are then required to arbitrate.

Shortly after the parenting plan was entered by the court, a dispute arose between the parties regarding the appropriate course of medical evaluation and treatment for their daughter, I.K.¹ When the parties were unable to agree on a mutually acceptable course for addressing the problem through the ADR process designated in the parenting plan, Kohls filed a petition to modify the parenting plan, seeking sole decision-making authority.   She submitted a declaration in support of her petition, alleging that joint decision-making had become impossible.   She claimed that Kaplan used the joint-decision making power as a weapon to harass her and that, as a result, necessary and important decisions regarding the children were delayed.

A court commissioner denied Kohls' petition, concluding that she failed to show adequate cause for a hearing.   The commissioner also awarded Kohls $5,785.90 in attorney fees that had been reserved from a previous matter unrelated to the petition.

Both parties moved to revise the commissioner's order.   The superior court denied the motions, concluding with respect to Kohls' motion that “[t]he substantial change of circumstances required is not established when the parties continue to demonstrate the same conflict after the parenting plan as before.” ²  With respect to the commissioner's ruling on attorney fees, the superior court affirmed, concluding that “[Kaplan's] intransigence is well documented in the record.” ³  The superior court declined to award fees to either party for the motion to revise.

Kaplan appealed, arguing that the record failed to support the trial court's finding of intransigence.   Kohls cross-appealed, arguing that the trial court erred in concluding that she had not presented a prima facie case for modification.   She also asked for attorney fees on appeal.   We reversed in part and affirmed in part.   In doing so, we concluded that “[t]he 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.” ⁴  Specifically, we stated that:

[N]otwithstanding 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.

․

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, provisions of RCW 26.09.187 may also support modification of the agreed plan.[5]

We also awarded Kohls attorney fees for that appeal.

On remand, the trial court held a four day hearing on Kohls' petition.   The court heard testimony from both parties and two expert witnesses, considered over 300 exhibits, and took judicial notice of the legal record prior to the filing of the modification petition.   It then issued a 12 page memorandum decision, which included factual findings, and dismissed Kohls' petition.   The court decided that each party should be responsible for their own attorney fees.

Kaplan moved for reconsideration on whether he should be awarded attorney fees for opposing Kohls' petition.   He claimed that she brought the petition in bad faith.   Kaplan also sought CR 11 sanctions against Kohls and her trial counsel for the hearing on remand.   The trial court did not award sanctions and left undisturbed its determination that each party should be responsible for their own fees.   However, the court modified its finding of Kaplan's intransigence made before the prior appeal of this case:

The Motion to Reconsider making findings regarding [t]his court's prior finding that “Mr. Kaplan's intransigence is well documented in the record” is GRANTED.   The following finding is substituted “Upon the more thorough examination of the facts made at trial this court's prior findings regarding Mr. Kaplan are not sustainable.   In proceedings before this court Mr. Kaplan has not been intransigent.” [6]

Kaplan appeals the trial court's denial of attorney fees and sanctions.   Kohls cross-appeals the trial court's dismissal of her petition to modify the parenting plan.

ATTORNEY FEES

Bad Faith Motion to Modify Parenting Plan

Kaplan's appeal is primarily a challenge to the trial court's discretionary determination not to award fees on any basis.   Specifically, Kaplan first argues that the trial court abused its discretion in refusing to award attorney fees against Kohls under former RCW 26.09.260(11) (2000).⁷  He claims her motion to modify the parenting plan was made in bad faith.   Because the trial court declined to make the finding of bad faith required by this statute and there is insufficient basis in this record for such a determination, we reject this argument.

Former RCW 26.09.260(11) provides:

If the court finds that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving parent against the moving party.[8]

Attorney fee awards under chapter 26 RCW rest in the discretion of the trial court, and this court will not interfere with the award unless the trial court abuses that discretion by basing its decision on unreasonable or untenable grounds.⁹

Here, the trial court did not make a finding that Kohls moved to modify the parenting plan in bad faith, the sole basis for awarding fees under this statute.  “The absence of a finding of fact in favor of the party with the burden of proof about a disputed issue is the equivalent of a finding against that party on that issue.” ¹⁰  Moreover, the memorandum decision of the trial court expressly states that “none of the issues [that the parties litigated] were frivolous or made in bad faith.” ¹¹

The absence of a finding of bad faith is fatal to Kaplan's request for fees on the basis of former RCW 26.09.260(11) unless he can establish that the court should have made such a finding.   This record does not support that view.

Kaplan primarily argues that Kohls acted in bad faith based on certain standards discussed in Rogerson Hiller Corporation v. Port of Port Angeles.¹²  There, Division Two of this court acknowledged that our supreme court, in In re Matter of Pearsall-Stipek,¹³ confirmed that “bad faith litigation can warrant the equitable award of attorney fees.” ¹⁴  That division also stated that Washington case law provides little precedent for deciding what constitutes bad faith for purposes of awarding fees.   Accordingly, Division Two adopted and applied certain federal standards for deciding the question.¹⁵  Those standards include prelitigation misconduct, procedural bad faith, and substantive bad faith.¹⁶

First, as the Division Two case states, the supreme court confirmed in Pearsall-Stipek that a court may award attorney fees for bad faith based on its inherent equitable powers.¹⁷  But, in Pearsall-Stipek the supreme court reversed the trial court's award of fees because there had been no finding of bad faith, merely a determination that the recall petition was “frivolous and advanced without reasonable cause.” ¹⁸  In reversing, the supreme court focused on the absence of a finding of the petitioner's motivation, suggesting that it might have been spite.¹⁹

We read Pearsall-Stipek to mean that an award of fees based on a court's equitable powers must be based on an express finding of bad faith.   Here, there is no such finding.   Moreover, the fee request here is based on a statute, not the court's exercise of its equitable powers.   But, even if we equated the court's exercise of its equitable power to award fees based on bad faith with the mandate under former RCW 26.09.260(11), the absence of the required bad faith finding is fatal.

Further, wholesale application of the federal standards discussed in the Division Two case to former RCW 26.09.260(11) is problematic.   For example, the express statutory language at issue here requires a finding that the “motion to modify a ․ parenting plan has been brought in bad faith.”   The plain words of the statute focus on the motion to modify, not “prelitigation bad faith” on which Kaplan relies, in part.

The other bases on which Kaplan relies, procedural bad faith and substantive bad faith, provide no better support for attacking the trial court's exercise of discretion in denying fees under former RCW 26.09.260(11).   A careful reading of the trial court's lengthy memorandum decision shows there was no basis for the trial court to make a finding under either of these two categories.   In fact, the trial court expressly stated that there was no bad faith by any party in a more general sense.   The essence of the procedural bad faith claim appears to be what Kaplan characterizes as misrepresentations by Kohls in her petition for modification.   But we cannot say that the trial court abused its discretion in declining to make a finding of bad faith based on this characterization.   The trial court was in the best position to make this determination after hearing the testimony and other evidence presented by both sides during the course of the four day hearing.   Nothing in this record convinces us to reach out and upset that determination.

As for the substantive bad faith claim, it requires “an improper motive,” which Kaplan fails to show.   Again, we will not reach out to make a determination he has failed to prove.

Accordingly, Kaplan has failed in his burden to show that a bad faith finding should have been made by the judge to support the award of fees under former RCW 26.09.260(11).   That failure is fatal to this claim on appeal.

Alternatively, Kaplan argues that the trial court's findings “[t]aken as a whole” compel a finding of bad faith.²⁰  We also reject this argument.

It is difficult to accept why findings “taken as a whole” support the very specific finding required by the fee statute-that the motion to modify was made in bad faith.   Nevertheless, it appears that Kaplan relies on the following findings in support of his claim for fees under this statute:  that Kohls “lied to the court;” that Kohls fabricated the claim that Kaplan was out to ruin her financially;  that Kohls' accusation that Kaplan refused to participate in ADR was a “histrionic exaggeration;” and that Kohls' expectation that Kaplan would refuse to adhere to the parenting plan was “bad faith.”

We note that none of these findings, other than the last, mention bad faith.   These findings indicate the court's concern that Kohls' behavior during the course of the litigation and trial was at times inappropriate.   But these findings were entered in support of the trial court's conclusion that her petition to modify the parenting plan was not substantiated by the evidence.   They had nothing to do with a bad faith determination for purposes of awarding fees.

Despite these findings, the trial court did not find that Kohls' motive for filing the petition was improper, as the statute and case law require.   Rather, the court found that

[t]he factual issue for which testimony was sought [in this trial] was the nature of [I.K.'s] medical diagnosis and the appropriateness of treatment by stimulant medication.   This is a very contentious and controversial subject in general and especially so in parental disagreements.

․

The “court event history” as this decision identifies it consists of three court actions initiated by [Kaplan] and two initiated by [Kohls].   All of the attorney fee awards favored [Kohls] and none of the issues were frivolous or made in bad faith.  [The] record does not support abuse of the court process.[[21]

In light of the court's decision not to make a bad faith finding for the purpose of awarding fees and its express determination that none of the issues were litigated in bad faith, the trial court did not abuse its discretion in denying Kaplan's request for attorney fees under former RCW 26.09.260(11).

Kaplan next contends that the dictionary definition of “bad faith” supports his position.   In view of the case law we have already discussed, dictionary definitions are of little or no value to our analysis.   In sum, the case authority holds that some bad motive is required to establish bad faith, and there was no finding here of such a motive.   We reject this claim.

CR 11

Kaplan next argues that the trial court abused its discretion in refusing to award sanctions either against Kohls or her trial counsel under CR 11.   We disagree.

The purpose of CR 11 is to deter baseless filings and curb abuses of the judicial system.²²  CR 11 provides that the trial court may impose sanctions against a party or his attorney if a pleading, motion, or legal memorandum is submitted that is (1) not well grounded in fact, (2) not well grounded in law, (3) filed for an improper purpose, and (4) when viewed objectively, the culpable party or attorney failed to make a reasonable inquiry into the factual or legal basis for the action.²³  This court applies an objective standard to determine whether a reasonable person in like circumstances could believe his actions to be factually and legally justified.²⁴  “The burden is on the movant to justify the request for sanctions.” ²⁵

The decision whether to award attorney fees is left to the trial court's discretion and will not be disturbed in the absence of a clear showing of abuse of discretion.²⁶  An abuse of discretion occurs only when no reasonable person would take the view that the trial court adopted.²⁷

Here, while the trial court did make some findings that were adverse to Kohls, a fair reading of the court's memorandum decision shows that the case presented at least some debatable issues.   The failure of a party to prevail does not equate to a case for CR 11 sanctions.

The same analysis applies to the request for sanctions against Kohls' trial counsel on remand.   The record contains a declaration by trial counsel setting forth the reasons for the claims below.   Nothing persuasively contradicts that testimony.   In short, there is absolutely nothing in this record to justify the imposition of sanctions against former counsel or Kohls for violation of CR 11.

Disgorgement of Previously Awarded Attorney Fees

Kaplan finally argues that Kohls should be required to disgorge attorney fees that were previously awarded to her in this matter.   We again disagree.

At issue in the prior appeal to this court was the award to Kohls of attorney fees previously reserved from another matter.   The trial court affirmed that award, concluding that “[Kaplan's] intransigence is well documented in the record.”   We also awarded her attorney fees on appeal when we reversed in part that order and remanded for further proceedings.²⁸

On remand, the trial court changed its mind about Kaplan's intransigence, substituting a new finding in response to Kaplan's motion following the hearing on remand.   Kaplan now argues that this court should require Kohls to disgorge all of these prior fees because the trial court changed its mind.

Generally, the Court of Appeals loses the power to change or modify a decision upon issuance of a mandate.²⁹  A mandate is “the written notification by the clerk of the appellate court to the trial court and to the parties of an appellate court decision terminating review.” ³⁰  Two exceptions are provided under the Rules of Appellate Procedure.  “Upon issuance of a mandate, the appellate court's action or decision becomes effective and binding on the parties and ‘governs all subsequent proceedings in the action in any court, unless otherwise directed upon recall of the mandate as provided in rule 12.9, and except as provided in rule 2.5(c)(2).’ ” ³¹

RAP 12.9(b) allows the appellate court to recall a mandate to correct “an inadvertent mistake or to modify a decision obtained by the fraud of a party or counsel in the appellate court.”  RAP 2.5(c)(2) provides that if a case returns to an appellate court following a remand,

[t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

Because the rule uses the term “may,” application of RAP 2.5(c)(2) 's exception to the law of the case doctrine has been characterized as discretionary, rather than mandatory.³²

In Roberson v. Perez,³³ the supreme court acknowledged that RAP 2.5(c)(2) codified two historically recognized exceptions to the law of the case doctrine.³⁴  First, the appellate court may reconsider a prior decision in the same case where that decision is clearly erroneous, would work a manifest injustice to one party, and no corresponding injustice would result to the other party if the erroneous holding were set aside.³⁵  Second, the appellate court may consider the law at the time of the later review in the same case where there has been an intervening change in the law.³⁶

Here, the mandate for the prior appeal issued on August 1, 2008.   In our view, none of the exceptions to the effect of issuance of the mandate justifies a revision of the prior awards of attorney fees.

Leaving aside that Kaplan has not requested that this court recall the mandate issued in the earlier appeal to this court, we note that the prior award of attorney fees in this case was based on the record then before this court.   The trial court has since changed its mind about intransigence.   But Kaplan fails to demonstrate persuasively that any fraud on the part of Kohls occurred or that any injustice would result if the prior decision of this court stands.   Significantly, Kaplan fails to cite any case law that would support this highly unusual relief that he requests.   Accordingly, we decline to direct Kohls to disgorge the attorney fees previously awarded to her.

SUBSTANTIAL EVIDENCE

Kohls argues in her cross-appeal that a number of the trial court's findings are not supported by the evidence and that, therefore, the trial court abused its discretion in denying her petition to modify the parenting plan.   We disagree.

Parenting plan modifications require a two-step process set out in RCW 26.09.260 and .270.   First, the party moving to modify the parenting plan must produce an affidavit showing adequate cause for modification before the court will permit a full hearing on the matter.³⁷  If the moving party establishes adequate cause and the court holds a full hearing, the court may then modify the existing parenting plan if it finds that (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child's health, (3) modification is in the child's best interest, and (4) the change will be more helpful than harmful to the child.³⁸

What constitutes a substantial change in circumstance has not been defined by the legislature and is subject to the trial court's broad discretion.³⁹  This court reviews a trial court's decision on a petition to modify a parenting plan for abuse of discretion.⁴⁰  “A trial court's decision will not be reversed on appeal unless the court exercised its discretion in an untenable or manifestly unreasonable way.   Moreover, a trial court's findings will be upheld if they are supported by substantial evidence.” ⁴¹

Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.⁴²  But determining the credibility of witnesses and the weight to assign to conflicting testimony is for the trial judge.⁴³  Such credibility determinations are not subject to review on appeal because the trial court has the unique opportunity to personally observe and listen to the parties and evaluate conflicting evidence.⁴⁴  Unchallenged findings of fact are verities on appeal.⁴⁵

Sheila argues that 18 of the court's findings in its 12 page memorandum decision are not supported by the evidence.   This argument is not supported by the record.

First, a great deal of the evidence in this record consists of the conflicting oral testimony of the parties at the revision hearing.   Kohls' assignments of error numbered 5, 6, 7, 8, 10, 13, 14, and 16 involve credibility determinations from conflicting evidence.   We will not review such determinations on appeal.

In its memorandum decision, the trial court stated that it observed the “witness's memory, responsiveness, whether the answers [were] reticent or forthcoming, demeanor, consistency within the testimony, motive or interest in the outcome, and contradiction (impeachment).”   This court did not.

Second, a number of Kohls' assignments of error identify problems with the memorandum decision that are minor or immaterial to the outcome.   For example assignment of error nine points out that the memorandum decision incorrectly states that both parties appealed from the trial court's initial order denying Kohls' modification petition, when in fact Kaplan appealed and Kohls cross-appealed.   Likewise, assignment of error eleven takes issue with the fact that the memorandum decision states that Kohls refused to use e-mail because “she can't type and is not good with computers,” when in fact Kohls testified that she types “slowly” and is “faster at hand writing.”   These are both immaterial to the trial court's ultimate determination that she was less credible than Kaplan.

Assignments of error 12 and 17 also point out minor errors in the trial court's findings.   The memorandum decision states that Kohls testified that “not a single month has gone by without some ADR dispute.”   Kohls in fact testified that “there has not been one month without something legal issue or [sic] created by Mr. Kaplan.”   The memorandum decision states that the trial was the first time Kohls asserted domestic violence.   In fact, Kohls did not allege domestic violence, but rather “economic coercion” and “behavioral domestic abuse.”   These minor mischaracterizations of Kohls' testimony do not materially affect the trial court's conclusions of law.

Similarly, assignment of error 18 challenges the trial court's finding that Kaplan's CR 68 settlement offer proposed to yield sole health care decision-making to Kohls.   Kohls points out that the offer required notice and allowed Kaplan to object on the family law motion calendar.   This discrepancy between the CR 68 offer and the trial court's characterization of that offer in its findings is not material to the outcome.

Kohls' remaining assignments of error identify instances where the language in the memorandum decision is inconsistent with some of the evidence in the record.   But in each case, the court is summarizing from the vast record generated over years of litigation, the errors are minor, and in all substantive respects the evidence supports the finding.

Further, much of the documentary evidence in this case consists of conflicting statements by the parties in prior declarations, letters, and court filings.   To the extent that Kohls relies on this evidence to support her arguments on appeal, it is insufficient to overturn the trial court's findings.   A reviewing court may not disturb findings of fact supported by substantial evidence even if there is conflicting evidence.⁴⁶

Kohls argues in assignments of error 1 and 15 that the evidence does not support the trial court's finding that she testified that her 12 years of marriage to Kaplan justified her anticipation that he would refuse to adhere to a court ordered parenting plan, and the conclusion that this was bad faith.   Kohls contends that she testified just the opposite, that she anticipated “full cooperation” from Kaplan up until the dispute over their daughter's medical care.   But while Kohls did not testify in the exact words of the memorandum decision, she did testify that she believed that Kaplan had been abusive before and after the marriage and that his approach to their legal disputes was consistent with his “style” during their 12 year marriage.   This, along with Kohls' extensive testimony of her perception of events both before and after the parenting plan was entered, including her conclusion that joint decision making was unworkable just over a year after the parenting plan was entered, supports the trial court's finding that Kohls anticipated that Kaplan would not cooperate in implementing the parenting plan.

In assignments of error 2, 3, and 4, Kohls argues that the trial court incorrectly found that she “mischaracterized” the issue raised by Kaplan in his first appeal of the parenting plan, and incorrectly found that this issue was ultimately settled in Kaplan's favor.   The record on this issue is long and complex.   It appears that the trial court's summary of events includes some mischaracterizations of the evidence.   But the court's overall conclusion is not impacted by these minor mistakes.   Ultimately, the trial court concluded that Kaplan's earlier appeal of the parenting plan did not support Kohl's modification petition because it was not an abuse of the court process and did not show that he “frustrate[d] the ADR provisions” in the parenting plan.   This is supported by the evidence, which shows that Kaplan had reasonable concerns about a perceived reduction in his residential time between the temporary parenting plan and the final parenting plan and that the parties eventually settled on a compromise.

In sum, the record supports the trial court's findings that are material and these findings in turn support the trial court's conclusions of law.   The trial court did not abuse its discretion in determining that a modification of the decision-making provisions in the parenting plan was not supported by the evidence.

ATTORNEY FEES ON APPEAL

Both parties seek attorney fees on appeal.   Because of our resolution of the issues on appeal and cross-appeal, each party shall bear their own fees and costs.

Attorney fees are recoverable under various statutes that each party cites in support of their respective requests.   In our judgment, none of the authorities supports an award of fees to either party in this case.   We so hold.

We affirm all orders on appeal.

WE CONCUR:

FOOTNOTES

FN1. In re Marriage of Kaplan, noted at 144 Wn.App. 1015, 2008 WL 1868688, at *1..  FN1. In re Marriage of Kaplan, noted at 144 Wn.App. 1015, 2008 WL 1868688, at *1.

FN2. Clerk's Papers at 580..  FN2. Clerk's Papers at 580.

FN3. Id..  FN3. Id.

FN4. In re Marriage of Kaplan, 2008 WL 1868688, at *1..  FN4. In re Marriage of Kaplan, 2008 WL 1868688, at *1.

FN5. Id. at *4-5..  FN5. Id. at *4-5.

FN6. Clerk's Papers at 967..  FN6. Clerk's Papers at 967.

FN7. Former RCW 26.09.260(11) (2000), recodified as RCW 26.09.260(13) (2009)..  FN7. Former RCW 26.09.260(11) (2000), recodified as RCW 26.09.260(13) (2009).

FN8. (Emphasis added.).  FN8. (Emphasis added.)

FN9. In re Marriage of Sanborn, 55 Wn.App. 124, 130, 777 P.2d 4 (1989)..  FN9. In re Marriage of Sanborn, 55 Wn.App. 124, 130, 777 P.2d 4 (1989).

FN10. Wallace Real Estate Inv., Inc. v. Groves, 72 Wn.App. 759, 773 n.9, 868 P.2d 149 (1994)..  FN10. Wallace Real Estate Inv., Inc. v. Groves, 72 Wn.App. 759, 773 n.9, 868 P.2d 149 (1994).

FN11. Clerk's Papers at 880..  FN11. Clerk's Papers at 880.

FN12. 96 Wn.App. 918, 982 P.2d 131 (1999)..  FN12. 96 Wn.App. 918, 982 P.2d 131 (1999).

FN13. 136 Wn.2d 255, 267 n.6, 961 P.2d 343 (1998)..  FN13. 136 Wn.2d 255, 267 n.6, 961 P.2d 343 (1998).

FN14. Rogerson Hiller, 96 Wn.App. at 927..  FN14. Rogerson Hiller, 96 Wn.App. at 927.

FN15. Id. at 927-30..  FN15. Id. at 927-30.

FN16. Id. at 926-27..  FN16. Id. at 926-27.

FN17. Id. at 927..  FN17. Id. at 927.

FN18. Matter of Pearsall-Stipek, 136 Wn.2d at 266-67..  FN18. Matter of Pearsall-Stipek, 136 Wn.2d at 266-67.

FN19. Id..  FN19. Id.

FN20. Brief of Appellant at 28..  FN20. Brief of Appellant at 28.

FN21. Clerk's Papers at 879-80..  FN21. Clerk's Papers at 879-80.

FN22. Skimming v. Boxer, 119 Wn.App. 748, 754, 82 P.3d 707 (2004) (citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994) )..  FN22. Skimming v. Boxer, 119 Wn.App. 748, 754, 82 P.3d 707 (2004) (citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994) ).

FN23. Madden v. Foley, 83 Wn.App. 385, 389, 922 P.2d 1364 (1996)..  FN23. Madden v. Foley, 83 Wn.App. 385, 389, 922 P.2d 1364 (1996).

FN24. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992)..  FN24. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992).

FN25. Biggs, 124 Wn.2d at 202..  FN25. Biggs, 124 Wn.2d at 202.

FN26. Matter of Pearsall-Stipek, 136 Wn.2d at 265..  FN26. Matter of Pearsall-Stipek, 136 Wn.2d at 265.

FN27. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997)..  FN27. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).

FN28. In re Marriage of Kaplan, 2008 WL 1868688, at *5..  FN28. In re Marriage of Kaplan, 2008 WL 1868688, at *5.

FN29. RAP 12.2..  FN29. RAP 12.2.

FN30. RAP 12.5(a)..  FN30. RAP 12.5(a).

FN31. State v. Schwab, 163 Wn.2d 664, 671-72, 185 P.3d 1151 (2008) (quoting RAP 12.2)..  FN31. State v. Schwab, 163 Wn.2d 664, 671-72, 185 P.3d 1151 (2008) (quoting RAP 12.2).

FN32. Id. at 672..  FN32. Id. at 672.

FN33. 156 Wn.2d 33, 123 P.3d 844 (2005)..  FN33. 156 Wn.2d 33, 123 P.3d 844 (2005).

FN34. Id. at 42..  FN34. Id. at 42.

FN35. Id..  FN35. Id.

FN36. Id..  FN36. Id.

FN37. RCW 26.09.270..  FN37. RCW 26.09.270.

FN38. RCW 26.09.260(1), (2)(c)..  FN38. RCW 26.09.260(1), (2)(c).

FN39. In re Marriage of Tomsovic, 118 Wn.App. 96, 105, 74 P.3d 692 (2003)..  FN39. In re Marriage of Tomsovic, 118 Wn.App. 96, 105, 74 P.3d 692 (2003).

FN40. In re Marriage of Kinnan, 131 Wn.App. 738, 746, 129 P.3d 807 (2006)..  FN40. In re Marriage of Kinnan, 131 Wn.App. 738, 746, 129 P.3d 807 (2006).

FN41. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993) (citations omitted)..  FN41. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993) (citations omitted).

FN42. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)..  FN42. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).

FN43. In re Marriage of Burrill, 113 Wn.App. 863, 868, 56 P.3d 993 (2002)..  FN43. In re Marriage of Burrill, 113 Wn.App. 863, 868, 56 P.3d 993 (2002).

FN44. In re Marriage of Woffinden, 33 Wn.App. 326, 330, 654 P.2d 1219 (1982)..  FN44. In re Marriage of Woffinden, 33 Wn.App. 326, 330, 654 P.2d 1219 (1982).

FN45. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999)..  FN45. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).

FN46. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010) (citing In re Marriage of Lutz, 74 Wn.App. 356, 370, 873 P.2d 566 (1994))..  FN46. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010) (citing In re Marriage of Lutz, 74 Wn.App. 356, 370, 873 P.2d 566 (1994)).

Cox, J.-Kenneth Kaplan appeals, claiming that the trial court abused its discretion by refusing to award him attorney fees against Sheila Kohls as well as her trial counsel.   Kohls cross