Thomas Baicy v. Danelle M. Shay ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting )
and Support of ) No. 74894-7-1
BAINYA SHAY, Child, ) DIVISION ONE
THOMAS 0. BAICY, )
Appellant, ) UNPUBLISHED OPINION
and )
DANELLE M. SHAY, )
FILED: November 7, 2016
Respondent. )
Leach, J. — Thomas Baicy appealed the trial court's denial of his request
"to re-note" a motion for adjustment of child support. Baicy's arguments on
appeal, however, challenge only the trial court's earlier order denying a motion
for adjustment of child support. Because the earlier order was a final judgment,
Baicy's failure to appeal it precludes review. Nor has Baicy made any showing
that the trial court erred in denying his request "to re-note" a motion to adjust
child support. We therefore affirm.
FACTS
Baicy and Danelle Shay are the parents of a daughter born in 2005.
Following a series of contentious parenting plan proceedings, the trial court found
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Baicy in contempt and prohibited him from filing future motions or petitions
without prior court authorization.
On November 30, 2015, the trial court entered an amended order
permitting Baicy to file a motion to adjust child support based on allegations that
the parties' incomes had changed and that more than 24 months had passed
since entry of the child support order.
After a contested hearing on December 15, 2015, the trial court denied the
motion, concluding that Baicy had failed to demonstrate a change in the parties'
income warranting a child support adjustment. In an extensive oral decision, the
court found, among other things, that the evidence failed to support Baicy's claim
that the residential transportation schedule prevented him from seeking or
obtaining employment or to rebut Shay's declaration setting forth her income.
At the conclusion of the hearing, the court entered a written order denying
Baicy's motion and the parties' requests for attorney fees and sanctions. The
order expressly incorporated "the findings this Court made on the record." Baicy
did not appeal from the December 15 order.
By letter dated January 29, 2016, Baicy informed the trial court that he
was "now prepared with copies of my renters' contracts," evidence he had failed
to submit for the December 15 hearing. Baicy also attached a copy of a January
8, 2016, order "evidencing that I am current on my present obligation of child
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support." Based on the new materials, Baicy asked the court to "[pjlease let me
know when my hearing can be noted."
On February 3, 2016, the trial court entered an order denying "Petitioner's
Request to Renote Motion to Adjust Support." After reviewing the findings it
entered in conjunction with the December 15 order, the court concluded that
Baicy had failed to demonstrate "a substantial change in circumstances" that
would permit a new support adjustment hearing.
On March 2, 2016, Baicy filed a notice of appeal designating only the
February 3 order.
TIMELINESS OF APPEAL
On appeal, Baicy contends the trial court erred in denying his motion for a
support adjustment hearing based on his failure to demonstrate a "substantial
change in circumstances." He correctly states that a party may petition for an
adjustment of child support once every 24 months "without a showing of
substantially changed circumstances" based on "[cjhanges in the income of the
parents."1
But Baicy has not presented any meaningful legal arguments challenging
the February 3 order designated in his notice of appeal. Rather, his arguments
are directed to the trial court's December 15, 2015, denial of his petition for a
RCW 26.09.170(7)(a)(i).
No. 74894-7-1 / 4
child support adjustment. Among other things, Baicy contends that the trial court
erroneously allocated the burden of proof and that the evidence failed to support
the trial court's findings on the parties' current income. Because Baicy did not
seek review of the December 15 order, his arguments are not properly before us
for review.
Generally, a party must file a notice of appeal within 30 days of the entry
of a "final judgment."2 A final judgment is "[a] court's last action that settles the
rights of the parties and disposes of all issues in controversy, except for the
award of costs (and, sometimes, attorney's fees) and enforcement of the
judgment."3 A judgment is final "even if it directs performance of certain
subsidiary acts in carrying out the judgment, the right to the benefit of which is
adjudicated in that judgment."4 Substance controls over form in the
determination of a final judgment.5
Baicy filed his motion for a child support adjustment on November 19,
2015. After a fully contested hearing on December 15, the trial court entered a
written order that denied Baicy's motion and fully resolved all issues in
2 RAP 2.2(a)(1), 5.2(a).
3 State v. Taylor, 150 Wash. 2d 599, 602, 80 P.3d 605 (2003) (quoting
Black's Law Dictionary 847 (7th ed. 1999)).
4 Wlasiukv. Whirlpool Corp., 76 Wash. App. 250, 255, 884 P.2d 13 (1994);
see also Nesteqard v. Inv. Exch. Corp., 5 Wash. App. 618, 623-24, 489 P.2d 1142
(1971).
5 Nesteqard. 5 Wash. App. at 623.
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No. 74894-7-1 / 5
controversy, including the parties' request for attorney fees and sanctions.
Because the court's order was a final judgment, Baicy's failure to file a timely
notice of appeal precludes review.6
Baicy contends that the December 15 order was not final because the trial
court failed to comply with RCW 26.19.035(2), which requires that a child support
order "be supported by written findings of fact upon which the support
determination is based." He claims that because the trial court did not reduce its
oral findings to written findings until it entered the February 3 order, the 30-day
period for filing a notice of appeal did not start until February 3. Baicy provides
no authority to support this argument.
Contrary to Baicy's claim, the trial court's February 3 order did not
constitute the formal entry of findings of fact and conclusions of law to support
the December 15 judgment. Rather, the trial court merely referred to some of the
findings that it made when it denied Baicy's motion in the earlier decision.
More importantly, the trial court's December 15 order expressly
incorporated by reference the extensive oral findings of fact that the court made
6 RAP 5.2(a); see also Kemmer v. Keiski, 116 Wash. App. 924, 937, 68 P.3d
1138 (2003) (failure to appeal judgment that leaves nothing unresolved precludes
further review).
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No. 74894-7-1 / 6
on the record. Baicy cites no authority suggesting that the trial court was
required to enter an additional set of findings to comply with RCW 26.19.035(2)7
Baicy asserts that his January 29, 2016, letter to the court was not an
attempt "to file a new motion for adjustment." He claims that he was only trying,
in good faith, to comply with the trial court's "instruction" to provide additional
evidence "so that the motion for adjustment that was already filed could be heard
in its entirety."
By its terms, however, the December 15 order unambiguously resolved all
of the pending issues. Nothing in the record provides any support for Baicy's
subjective belief to the contrary. Although we are mindful that Baicy is acting pro
se, we hold self-represented litigants to the same standard as an attorney.8 An
appellate court will decline to consider issues unsupported by cogent legal
argument and citation to relevant authority.9
Shay requests an award of attorney fees for a frivolous appeal.10 An
appeal is frivolous "if the appellate court is convinced that the appeal presents no
debatable issues upon which reasonable minds could differ and is so lacking in
7 Cf. State v. Kilburn, 151 Wash. 2d 36, 39 n.1, 84 P.3d 1215 (2004) (oral
decision has final or binding effect when formally incorporated into findings of
fact, conclusions of law, and judgment).
8 In re Marriage of Olson, 69 Wash. App. 621, 626, 850 P.2d 527 (1993).
9 See Saunders v. Lloyd's of London, 113 Wash. 2d 330, 345, 779 P.2d 249
(1989).
10 See RAP 18.9(a).
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No. 74894-7-1 / 7
merit that there is no possibility of reversal."11 We consider the record as a whole
and resolve all doubts against finding an appeal frivolous.12 Applying this
standard, we decline Shay's request for attorney fees.
Affirmed.
WE CONCUR:
I/vcAey A^J
CO
en
c
11 In re Marriage of Foley. 84 Wash. App. 839, 847, 930 P.2d 929 (1997).
12 Delanv v. Canning. 84 Wash. App. 498, 510, 929 P.2d 475 (1997).
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