In re the Marriage of Catherine Allen & Jeffrey Allen ( 2015 )

FILED
JUNE 16,2015
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN RE THE MARRIAGE OF: )
) No. 31619-0-III
CATHERINE M. ALLEN, )
)
Respondent, )
)
and ) UNPUBLISHED OPINION
)
JEFFREY R. ALLEN, )
)
Appellant. )
FEARING, J. - Jeffrey Allen appeals an order increasing his child support
obligations. Jeffrey contends Commissioner Harry Ries should have recused himself
from presiding over a motion to change venue because Commissioner Ries previously
represented Jeffrey against his former wife Catherine Allen. Alternatively, Jeffrey argues
the court erred in denying his request to change venue. Last, Jeffrey argues the court
denied him due process when another court commissioner changed his child support
obligations because he never received information about his wife's finances. We reject
Jeffrey Allen's arguments and affirm the order modifying Jeffrey's child support
obligations.
FACTS
Jeffrey Allen and Catherine Allen, now divorced, have two children together. The
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Grant County Superior Court, where family members then resided, entered the divorce
decree. The two children receive public support through payments to Catherine. Under a
November 6, 2009 order, Jeffrey previously paid Catherine $200 each month in child
support. In 2011, Catherine and the children moved to Everett, Snohomish County. In
tum, Jeffrey moved to Tacoma, Pierce County, to reside closer to his children.
On August 7, 2012, the State of Washington moved, in Grant County Superior
Court, to increase Jeffrey's child support obligations. The clerk scheduled a hearing for
the modification motion on November 1, 2012.
On October 5, 2012, Jeffrey Allen moved to change venue. Jeffrey asserted that
he now lived in Pierce County and Catherine and their children lived in Snohomish
County. Jeffrey sought to change venue to Snohomish County and offered to pay any
associated court fees. On October 17, the clerk scheduled a hearing, on the motion to
change venue, for October 26,2012.
In support of his motion to change venue, Jeffrey declared:
In conclusion my wishes to have a change of venue fits within the
parameters [of] RCW 26.09.280. It makes no sense to find solutions to our
conflict 250 miles away where we don't live and not where the children
currently reside. Its [sic] not my intention to stop any modification for
, support but to just move our arguments and changes where we both have
direct access to representation, resources and little travel involved. It just
makes common sense.
Clerk's Papers (CP) at 48.
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In response to Jeffrey's motion to change venue, Catherine averred that "Mr. Allen
has filed a change of venue as an attempt to avoid a modification of child support." CP at
64. Catherine further declared, "I ask the courts to continue this matter to be heard after
the completion to the pending hearing for Modification of Child Suppport [sic] is
completed." CP at 65.
Jeffrey and Catherine both appeared for the October 26,2012 hearing
telephonically. At Catherine Allen's request, the trial court continued consideration of
the motion to change venue until after consideration of the motion to modifY Jeffrey's
child support obligations, which was already scheduled to be heard November 1,2012.
At the November 1,2012 hearing, Superior Court Commissioner Pro Tern Harry
Ries first entertained Jeffrey Allen's motion to change venue. Jeffrey informed the court
that he planned to move to Mukilteo, Snohomish County. Thus, Jeffrey, Catherine, and
their two children would all reside in Snohomish County. Catherine argued that the child
support modification should be heard before the motion to change venue. Jeffrey
responded that he never received paperwork, worksheets or other documentation for the
support modification.
Commissioner Harry Ries issued a written decision on November 6, 2012.
Commissioner Ries ordered a change of venue to Snohomish County, unless the State
objected. Commissioner Ries observed that Catherine Allen moved, on September 30,
2011, for a change of venue to Snohomish County, and she never withdrew the motion.
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Under RCW 4.12.080, the court must order a venue change where the parties stipUlate to
such a change in writing. Commissioner Ries wrote:
It appears to the Court that each party has moved to change venue of
this action to Snohomish County. That is tantamount to a stipulation, and
the Court must honor that stipulation. However, the most recent action in
the file (State's Motion and Declaration for Adjustment ofSupport) is
brought on behalf of the Department of Social and Health Services pursuant
to statute. At the hearing on November 2, 2012, the state did not indicate
whether it had an objection to the change of venue. If the state does not
object to the change, then venue will be changed to Snohomish County.
CP at 69.
The State objected to a change of venue on the ground that transferring venue
would delay the motion to increase child support. On February 7, 2013, Commissioner
Pro Tern Ries denied Jeffrey Allen's motion to change venue. The State rescheduled its
motion to modifY Jeffrey Allen's support obligations for February 28, 2013.
On February 19,2013, Jeffrey Allen moved the superior court to reconsider the
court commissioner's order denying the request to change venue. Jeffrey captioned his
motion as "Motion for Order re: Review of Judgment," which caused confusion. CP at
82. In addition to seeking a reversal of the venue motion, Jeffrey also argued that
Commissioner Pro Tern Ries should have disqualified himself because he earlier served
as attorney for Jeffrey in the case. A hearing for reconsideration was scheduled for
March 22, 2013. The State rescheduled its motion for support modification for March,
28,2013.
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On March 20,2013, the State responded to Jeffrey Allen's motion with an
affidavit from Jerald Hamley. Hamley averred:
I am the Deputy Prosecuting Attorney who filed the modification
action because the previous Child Support Order dated November 6,2009,
was filed and heard in Grant County, Washington, which gives Grant
County jurisdiction to hear the modification action; that this matter was
previously heard by Judge Pro Tern Harry Ries and that the reasons to
change venue do not exist in this case because there is no live testimony of
witnesses to be taken; traditionally modification actions are based on
financial declarations and not oral testimony; that the mother rightfully
points out that a change of venue will create a 3 or 4 month delay; that the
purpose of the Motion to Change Venue is likely to forestall paying an
increase of child support by the father; that this matter is set for a
modification hearing on March 28, 2013, and that the parties have
submitted their financial information to the court in Grant County and there
will be no benefit in sending this information to an entirely new County
Court.
CP at 96. On March 21,2013, by declaration, Jeffrey Allen argued the State exceeded its
authority by representing Catherine Allen in this matter. Also on March 21, Catherine
Allen declared that she had abandoned her prior motion to change venue because of the
cost of retaining new counsel in Snohomish County. Catherine also noted that Jeffrey
should have earlier recognized Commissioner Pro Tern Harry Ries and asked for a
disqualification, if needed.
On March 22, 2013, Superior Court Commissioner Melissa Chlarson rejected, as
untimely, Jeffrey Allen's motion to reconsider a change in venue. Commissioner
Chlarson explained that Commissioner Ries entered the order denying the change of
venue on February 7, 2013, and a motion for reconsideration must be filed within ten
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days. Jeffrey did not file his motion to reconsider until February 19, 2013.
Commissioner Chlarson further explained: "Okay so what needed to happen though
would have been a Motion for Revision or a Motion for Reconsideration and it would
have been essentially by the Superior Court Judge and the timeframe for that has
essentially elapsed." Report of Proceedings (RP) at 15. The motion's improper caption
caused the confusion. Commissioner Chlarson then recessed court to determine if a
Superior Court judge was available to hear a motion for revision. Commissioner
Chlarson later reconvened the hearing and declared that no judge would hear the motion
for revision that day, but a judge would hear the motion on March 29, 2013. Jeffrey
stated he could not be in Grant County on March 29. Jeffrey struck the hearing to
reconsider Commissioner Pro Tern Harry Ries' denial of a change in venue.
On March 28, 2013, Commissioner Melissa Chlarson conducted a hearing on the
State of Washington's motion to modify Jeffrey Allen's child support obligations.
Jeffrey Allen argued that the commissioner's attempt to gain a Superior Court judge to
hear a motion for revision required her to remove herself from hearing the motion to
modify his support obligations. Jeffrey also argued that the State failed to serve him with
the financial documents underlying its motion to modify child support.
During the March 28 hearing, Court Commissioner Chi arson reviewed
declarations of mailing for the Notice of Hearing, Proposed Child Support Worksheet,
and Sealed Financial Source Documents, which declarations confirmed the State mailed
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Jeffrey Allen the necessary financial records. Jeffrey argued he must not have received
the documents because the State produced no signed receipt from him confirming receipt
of the records. Commissioner Chlarson informed Jeffrey that service is proper without a
return receipt. As Commissioner Chlarson announced she would entertain the motion to
modifY support, Jeffrey repeatedly interrupted her. The commissioner warned him, "[I]f
you interrupt me one more time I will hold you in contempt of court and what that means
is that you could go downstairs and spend some jail time." RP at 29.
During the March 28 hearing, Commissioner Melissa Chlarson granted the State's
motion to modifY Jeffrey Allen's child support obligations. The commissioner ordered
Jeffrey to pay $401.50 to Catherine for each of their two children for a total of$803
every month. As Commissioner Chi arson issued her oral ruling, Jeffrey and Catherine
both repeatedly interrupted.
LAW AND ANALYSIS
Change of Venue
Jeffrey Allen asks this court to reverse Commissioner Pro Tern Harry Ries'
decision denying his motion to change venue to Snohomish County. He asks that we
vacate the order modifYing his child support obligation and transfer that motion to the
Snohomish County Superior Court. Jeffrey contends Commissioner Ries should have
recused himself from presiding over the motion to change venue because Commissioner
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Ries previously represented him against Catherine. We reject his contention since he
fails to cite to facts in the record and law supporting his position.
RAP 10.3(5) provides:
Statement ofthe Case. A fair statement of the facts and procedure
relevant to the issues presented for review, without argument. Reference to
the record must be included for each factual statement.
The purpose of rules governing contents of appellate briefs is to enable the court and
opposing counsel efficiently and expeditiously to review the accuracy of the factual
statements made in the briefs and efficiently and expeditiously to review the relevant
legal authority. Litho Color, Inc. v. Pacific Employers Ins. Co., 98 Wn. App. 286, 305­
06, 991 P.2d 638 (1999).
Strict adherence to the aforementioned rule is not merely a technical
nicety. Rather, the rule recognizes that in most cases, like the instant, there
is more than one version of the facts. Ifwe were to ignore the rule
requiring counsel to direct argument to specific findings of fact which are
assailed and to cite to relevant parts of the record as support for that
argument, we would be assuming an obligation to comb the record with a
view toward constructing arguments for counsel as to what findings are to
be assailed and why the evidence does not support these findings. This we
will not and should not do.
In re Estate ofLint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998). This court will not search
the record to'construct an argument for the appellant. Mills v. Park, 67 Wn.2d 717, 721,
409 P.2d 646 (1966). Instead, appellate courts treat assigned errors without citation to
the factual record as lacking merit. Glazer v. Adams, 64 Wn.2d 144,149,391 P.2d 195(1964).
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Jeffrey Allen's brief contains no citation to the record. The brief egregiously
violates RAP 10.3 and 10.4. Thus, we treat all of Jeffrey Allen's assigned errors as
without merit.
We note that Jeffrey did not raise any disqualification of Commissioner Ries until
after the Commissioner denied his motion to change venue. Therefore, he waived the
assignment of error. RAP 2.5.
Jeffrey Allen argues Commissioner Pro Tern Harry Ries should have recused
himself under RCW 3.34.110. That statute provides for disqualification for district court
judicial officers. Harry Ries was a Commissioner Pro Tern for Grant County Superior
Court. Therefore, RCW 3.34.110 does not apply.
Jeffrey Allen argues Commissioner Harry Ries should have recused himself under
RCW 2.28.030. RCW 2.28.030 provides:
A judicial officer is a person authorized to act as a judge in a court of
justice. Such officer shall not act as such in a court of which he or she is a
member in any of the following cases: ... (4) When he or she has been
attorney in the action, suit, or proceeding in question for either party; but
this section does not apply to an application to change the place oftrial, or
the regulation of the order of business in court.
RCW 2.28.030(4) (emphasis added). A motion to change venue is synonymous with a
motion to change the place of trial. Therefore, RCW 2.28.030 did not disquality
Commissioner Ries from entertaining the motion to change venue.
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RCW 26.09.280 permits a party to petition to modifY child support in the "county
where the minor children are then residing, or in the court in which the final order,
judgment, or decree was entered, or in the county where the parent or other person who
has the care, custody, or control of the children is then residing." RCW 26.09.280. The
State petitioned for modification in Grant County, where the final order was entered.
Under the statute, venue was proper.
A decision to change venue that properly exists is reviewed for abuse of
discretion. Eubanks v. Brown, 170 Wn. App. 768, 771, 285 P.3d 901 (2012), aff'd, 180
Wn.2d 590,327 P.3d 635 (2014). RCW 4.12.030 controls a change in venue. That
statute provides:
The court may, on motion, in the following cases, change the place
of trial when it appears by affidavit, or other satisfactory proof: ... (4) That
from any cause the judge is disqualified; which disqualification exists in
either of the following cases ... when he or she has been of counsel for
either party in the action or proceeding.
Jeffrey Allen emphasizes the hardships he suffered traveling to Grant County to
contest the support modification. Admittedly, the parties' residency in Everett might
favor venue in Snohomish County. Nevertheless, Commissioner Ries, upon the objection
by the State, desired to avoid further delay in modifYing Jeffrey's child support
obligations. Commissioner Ries articulated a valid reason for his decision and thus did
not abuse his discretion.
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Service of Financial Records
Jeffrey Allen contends the trial court deprived him of due process by entering an
order modifying his support obligations when the State failed to properly serve him with
Catherine Allen's finances. Without citation to authority, Jeffrey argues proper service
required the State to provide proof of personal service or a certificate of mailing. CR
5(b) governs service requirements. The rule permits a party to provide proof of service
by "written acknowledgement of service, by affidavit of the person who mailed the
papers, or by certificate of an attorney." CR 5(b )(2)(B). The State filed a declaration of
mailing showing that it mailed a Child Support Worksheet and Sealed Financial Source
Documents. This declaration suffices. The court did not deny Jeffrey due process.
Attorney Fees
Both Jeffrey and Catherine Allen request attorney fees and costs on appeal under
RCW 26.09.140. RAP 18.1 permits a party to recover reasonable attorney fees and costs
if an applicable law provides for it, but the party must devote a section of his or her
opening brief to the request for the fees or expenses. RAP 18.1 (b). This requirement is
mandatory. Phillips Bldg. Co. v. An, 81 Wn. App. 696, 705, 915 P.2d 1146 (1996). The
rule requires more than a bald request for attorney fees on appeal. Stiles v. Kearney, 168
Wn. App 250,267,277 P.3d 9 (2012). Argument and citation to authority are required
under the rule to advise the court of the appropriate grounds for an award of attorney fees
as costs. Stiles, 168 Wn. App at 267.
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Catherine requested the court "award her costs and fees for maintaining Mr.
Allen's appeal (RCW 26.09.140)," Br. ofResp't at 8, and Jeffrey moved for an "awarded
[sic] costs and fees associated with this appeal per RCW 26.09.140." Br. of Appellant at
II. Both Jeffrey and Catherine failed to devote a section of their briefs to their requests.
We therefore deny the respective requests. We also note that both parties appear pro se
and likely incurred no fees.
CONCLUSION
We affirm the trial court's modification of child support. We deny both parties an
award of fees and costs.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040. .
. .j~:J-
~
,
Fearin ,J.
WE CONCUR:
~1~ {
v/
Siddoway, C.J.
Brown, J.
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