Nicholas J. Dennis v. Megan G. Yates ( 2020 )

FILED
OCTOBER 20, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Parentage of )
) No. 36722-3-III
NICHOLAS J. DENNIS, )
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
MEGAN G. YATES, )
)
Respondent. )
KORSMO, A.C.J. — Nicholas Dennis appeals from an award of attorney fees
following the entry of a parenting plan developed at mediation. We affirm the award, but
decline to grant additional fees on appeal.1
PROCEDURAL HISTORY
The parties to this paternity action operated under temporary parenting plans while
awaiting trial. The father, Mr. Dennis, was permitted visitation supervised by Fulcrum
Dispute Resolution Clinic. Both parties were represented by counsel.
1
We also deny the respondent’s motion to strike the supplemental clerk’s papers
filed by appellant. Only dispositive motions may be filed in a brief. RAP 10.4(d).
Although the motion appears meritorious, it was not dispositive of the case and,
therefore, needed to be filed as a motion for consideration by our clerk or commissioner.
No. 36722-3-III
Dennis v. Yates
Mr. Dennis desired to mediate the case through Fulcrum with the mother,
respondent Megan Yates, and without his counsel. Fulcrum policy required that the
attorney acknowledge in writing that a client was mediating without counsel and had
authority to enter into a settlement without counsel’s approval. Dennis’s attorney
acknowledged that his client would be mediating without him, but said nothing about his
client’s authority to settle the case.
Dennis and his brother attended the mediation with Yates and her attorney.
Although Dennis later indicated his belief that Yates’s attorney would not be present, he
nonetheless continued with the mediation despite learning that counsel was assisting
Yates. The parties reached and signed an agreement. The parenting plan made Yates the
custodian of their child. Dennis was permitted weekly supervised visitation through his
brother and was not permitted to seek removal of the supervision requirement until
evaluation(s) and any treatment had been completed.2 The agreement “reserved” the
question of future additional restrictions on the visitation or decision-making authority.
Dennis’ attorney advised that he would not sign the parenting plan, believing it
one-sided and void for imposing limitations on the father’s visitation while reserving
findings supporting the limitations. Yates then moved to enforce it. She also asked for
2
A court commissioner earlier had entered orders imposing these requirements;
the details are not relevant to this action.
2
No. 36722-3-III
Dennis v. Yates
an attorney fee award based on intransigence due to the need to litigate the agreement. In
response, Dennis stated his personal belief that Yates would be present without counsel
and that his counsel had to agree to any plan. Counsel for Dennis likewise expressed his
belief that the mediation involved only the parties and that counsel would not be present
for either side.
The trial court heard the motion to enforce the agreement. Concluding that there
was no evidence that Dennis did not understand the material terms of the agreement, the
court ruled that it was enforceable and entered the parenting plan. The court also granted
attorney fees to Yates. The subsequent order granted $1,600 in attorney fees, but does
not state the legal or factual basis for the award.
Mr. Dennis timely appealed to this court. A panel considered the appeal without
conducting oral argument.
ANALYSIS
Mr. Dennis argues that the attorney fee sanction for enforcing the CR 2A
agreement was unfair due to the circumstances argued to the trial court, primarily
blaming opposing counsel for misleading Dennis and his counsel. Ms. Yates seeks
attorney fees on appeal due to continued intransigence of Mr. Dennis. We reject his
argument and decline her request.
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No. 36722-3-III
Dennis v. Yates
Appellate courts review a trial court’s decision to enforce a settlement agreement
for abuse of discretion. Morris v. Maks, 69 Wash. App. 865, 868, 850 P.2d 1357 (1993).
Likewise, we review attorney fee awards for abuse of discretion. In re Marriage of
Crosetto, 82 Wash. App. 545, 563, 918 P.2d 954 (1996). Discretion is abuse when it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
Contract law principles govern construction of settlement agreements. Morris, 69
Wash. App. at 868. The authority to enforce a settlement agreement is based in CR 2A and
RCW 2.44.010. Morris, 69 Wash. App. at 868. The general rule is that a settlement
agreement must either be acknowledged in court or be in a signed writing. Id. at 868-
869. Even if the parties anticipate a later formalized agreement, evidence may establish a
binding preliminary agreement based on the extent the parties agreed to the subject
matter, whether the present writing establishes the key terms, and if the parties anticipate
the agreement be binding before the formalized contract. Loewi v. Long, 76 Wash. 480,
484, 136 P. 673 (1913). If the party disputing the settlement agreement fails to
demonstrate that the parties did not intend to be bound by the agreement until the
formalized document was prepared, the court may enforce the settlement agreement.
Morris, 69 Wash. App. at 872.
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No. 36722-3-III
Dennis v. Yates
Here, the parties do not dispute these governing principles. Rather, Mr. Dennis
argues in essence that the CR 2A agreement was the product of fraud or misconduct. The
record does not bear out that contention, but, more importantly, the trial court did not find
any such misbehavior. Instead, the trial court focused on the appropriate principles of
law noted above and concluded that Mr. Dennis understood the contents of the parenting
plan to which he was agreeing.
Mr. Dennis does not genuinely contest those findings, but, instead, focuses on the
manner in which the agreement was reached rather than the agreement itself. The
primary problem with that approach is that the father did not establish his case before the
trial judge. The trial court did not find that any misconduct occurred, and that the
objective evidence supported the trial court. The mother’s counsel never stated she
would not attend the mediation, nor did any communication from Fulcrum suggest that
the mother was proceeding without her attorney. Moreover, the attorney never
communicated directly with Mr. Dennis during mediation and did not mislead him about
terms of the agreement.
The record establishes why father’s counsel believed mother’s attorney would not
be present, but it does not objectively establish that she was not going to be present. Mr.
Dennis’ mistaken belief did not undercut the agreement he reached.
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No. 36722-3-III
Dennis v. Yates
A court may award attorney’s fees when a party is intransigent at trial, which
includes “foot-dragging, obstructing, filing unnecessary or frivolous motions, refusing to
cooperate with the opposing party, noncompliance with discovery requests, and any other
conduct that makes the proceeding unduly difficult or costly.” Wixom v. Wixom, 190 Wn.
App. 719, 725, 360 P.3d 960 (2015). Intransigence was the basis for Yates’ request for
an award of fees in the trial court. Although the trial court’s order does not expressly
state the basis for awarding fees, there was no other basis for the fee award identified in
the record. We presume the trial court acted on the basis of the request. In re Marriage
of Greenlee, 65 Wash. App. 703, 708-709, 829 P.2d 1120 (1992).
The trial court had tenable reasons for concluding that Dennis engaged in conduct
that made “the proceeding unduly difficult or costly.” He requested the mediation and
then reached an agreement on an appropriate parenting plan, only to renege almost
immediately. That forced Yates to spend time on court proceedings to enforce the
agreement. This was a textbook example of intransigent behavior. Greenlee, 65 Wn.
App. at 708-710. The trial court did not abuse its discretion by awarding fees.
Yates also requests that we award fees for continuing the intransigence on appeal.
Although we recognize our ability to do so, we decline her request. We believe this
appeal was motivated more by the perceived injustice of the process below—misguided
though that belief is—than it was for the purposes of delay or expense to Ms. Yates.
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No. 36722-3-III
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Affirmed.
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.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Siddoway, J.
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