Sean Kuhlmeyer v. Isabelle Kuhlmeyer ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 81002-2-I
ISABELLE KUHLMEYER,
DIVISION ONE
Respondent,
and
UNPUBLISHED OPINION
SEAN KUHLMEYER,
Appellant.
BOWMAN, J. — Sean Kuhlmeyer challenges several trial court orders
entered following the dissolution of his marriage with Isabelle Kuhlmeyer. The
“law of the case” doctrine precludes several assignments of error. Others are
barred as untimely, unsupported by the record, or moot. The remaining
challenges lack merit. We affirm.
FACTS
This is Sean’s second appeal concerning his marital dissolution with
Isabelle.1 See In re Marriage of Kuhlmeyer, No. 78765-9-I (Wash. Ct. App. Jan.
21, 2020) (unpublished) (Kuhlmeyer I), https://www.courts.wa.gov/opinions/pdf/
787659.pdf. We repeat the pertinent facts set forth in our prior opinion as
contextual background for the issues we address below.
1
Though Isabelle has since changed her last name to Latour, we refer to the parties by
their first names in this opinion and mean no disrespect in doing so.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81002-2-I/2
Sean and Isabelle married in 2000, had a child together, separated in
2016, and in 2017, Isabelle petitioned for dissolution of the marriage. In January
2018, the parties agreed to arbitrate their disputes under chapter 7.04A RCW
and “authorized the arbitrator to determine a final parenting plan, each party’s
income, a child support order, the division of assets and debts, a restraining
order, and an award of attorney fees.”2 Following a two-day arbitration in May
2018, the arbitrator entered a comprehensive 153-page award that set forth
findings of fact and conclusions of law, resolving all issues. Sean did not agree
with any of the rulings, contending that the arbitration award was “ ‘a travesty of
justice’ ” and “ ‘rife with errors.’ ”3
In June 2018, Sean moved to vacate the arbitration award, filed for
bankruptcy, and demanded to relitigate all issues before the arbitrator; while
Isabelle asked the trial court to affirm the nonfinancial issues resolved in binding
arbitration. The trial court entered an order partially confirming the arbitration
award, reserving resolution of financial issues pending Sean’s bankruptcy;
findings of fact and conclusions of law; and an order restraining Sean from
contacting Isabelle for 60 months. The court also entered a final parenting plan
under RCW 26.09.191 that restricted Sean’s parenting time and his ability to
make major decisions about the child based on Sean showing “ ‘no evidence of
being able to stop his compulsively self-destructive litigation pattern, short of
vindication, which h[e] is unlikely to get,’ ” and his abusive use of conflict “ ‘that
2
Kuhlmeyer I, slip op. at 2.
3
Kuhlmeyer I, slip op. at 2.
2
No. 81002-2-I/3
endangers and damages the psychological development’ ” of their child.4 The
court appointed Mollie Hughes to serve as case manager and directed Hughes to
conduct a six-month review of the parenting plan. The court ordered Hughes to
summarize her review in a written report and to include her “recommendations, if
any, for elimination of or change in supervision, reduction or expansion of
residential time, and/or contact between the parties.”
In July 2018, Sean filed a motion asking the trial court to “consider new
evidence of alleged misconduct by Isabelle’s counsel in conjunction with his
motion to strike the arbitration award” and to disregard reports authorized by the
guardian ad litem (GAL) appointed for the child based on a grievance he filed
against the GAL.5 Isabelle “responded by asking the court for relief from Sean’s
incessant and frivolous motions.”6
After a hearing, the trial court found that Sean’s “repeated filings
needlessly increased Isabelle’s litigation costs” and that “his threats to continue
improper litigation were harassing and abusive.”7
Thus, in an effort to impede Sean’s “ability to abusively use court
filings and legal proceedings to harass” Isabelle, the court prohibited
Sean from filing any more motions unless he submitted “a one-page
statement regarding its subject matter” to the court and received
approval to file the motion.[8]
The trial court noted that in the eight weeks between June 2 and July 31, 2018,
Sean had e-mailed the court 31 times, often seeking “ ‘legal advice on how to file
4
Kuhlmeyer I, slip op. at 2-3 (alteration in original).
5
Kuhlmeyer I, slip op. at 3.
6
Kuhlmeyer I, slip op. at 3.
7
Kuhlmeyer I, slip op. at 3.
8
Kuhlmeyer I, slip op. at 3.
3
No. 81002-2-I/4
more motions, or to complain of some other, unrelated, situation,’ ” and had
“ ‘engaged in repetitive litigation that is harassing and abusive.’ ”9 The trial court
awarded Isabelle attorney fees, denied Sean’s grievance against the GAL,
denied his motion to vacate the arbitrator’s award, denied his motion for new trial,
and denied Sean’s motion for sanctions against Isabelle’s counsel.
In August 2018, Sean filed a notice of appeal, challenging several orders
entered by the trial court between February and July 2018. Isabelle then filed a
motion for contempt, asserting various grounds. The trial court found Sean in
contempt of court:
Sean had “been warned in multiple court orders to follow the orders
of this court” and . . . “[n]otwithstanding the warnings, [he] filed
almost 500 pages of documents less than two court days before
this hearing[,]” with the “vast majority of the content” of his materials
asserting “frivolous claims.”[10]
The trial court also denied Sean permission to file a motion to modify the
parenting plan, a motion for contempt against Isabelle, and a “motion ‘regarding
personal property.’ ”11 The court denied Sean’s motion to reconsider the
contempt order.
In September 2018, the bankruptcy court dismissed Sean’s petition after
concluding that he filed the petition in bad faith and manipulated the bankruptcy
code to prevent resolution of the dissolution proceeding with Isabelle. The
bankruptcy court summarized Sean’s conduct as beyond egregious:
“[T]he debtor [Sean] wants to use an asset in which [Isabelle] has a
substantial economic interest to satisfy [Isabelle’s] claims against
9
Kuhlmeyer I, slip op. at 3 n.4.
10
Kuhlmeyer I, slip op. at 4 n.6 (brackets in original).
11
Kuhlmeyer I, slip op. at 4 n.7.
4
No. 81002-2-I/5
him, arising out of the marriage dissolution. While that is egregious
under almost any circumstance, it is made even worse here by the
additional facts that: (1) [Isabelle] has occupied the home and paid
the mortgage since 2016; (2) [Isabelle] is exposed to the risk that
she would be unable to take Washington State’s $125,000
homestead exemption, to which she would be entitled but for this
case; and (3) the debtor didn’t file this case until after the arbitrator
involved in the dissolution case concluded the home should be
awarded to [Isabelle].[12]
In October 2018, the trial court denied Sean’s numerous requests to file
motions to reconsider and for contempt orders against Isabelle as either
repetitive of motions that the court had denied before or having no merit on their
face. Sean then filed a second notice of appeal, challenging various trial court
orders entered between August and October 2018.
In January 2019, Sean filed a third notice of appeal, challenging the trial
court’s December 2018 findings and conclusions on financial issues, final order
confirming the arbitration award and assessing sanctions against Sean, final
dissolution degree, and final child support order. The trial court denied Sean’s
motion for a continuance and for a new trial as repetitive of past motions and
denied his other motions as meritless.
Case manager Hughes completed her review and filed her report in
August 2019. She stated that since the court’s December 2018 orders, the
parties’ dispute about Sean’s residential time “spiraled from bad to worse.”
Isabelle unilaterally cancelled multiple visits set forth in the parenting plan;
second-guessed the visitation supervisor, who later resigned; refused to
cooperate with Hughes; and filed a motion to have Hughes removed as case
12
Kuhlmeyer I, slip op. at 4 n.8 (alterations in original).
5
No. 81002-2-I/6
manager.13 Meanwhile, Sean’s persistent “legal wrangling” with Isabelle’s
attorney “served to incite and inflame the situation” and was “driven by obsessive
thoughts of unfairness and victimization related to the withholding of visits with
his child.” Hughes admonished Sean multiple times “for his behavior and set
strict guidelines for communication, financial accountability and restraint in his
filings.” Hughes also urged Sean to retain a family law attorney “to insulate him
from his impulsive attempt at using the legal system to avoid his own
culpability.”14
Hughes reported that since December 2018, Sean had only one two-hour
supervised visit with his child. Hughes recommended a phased-in return of
Sean’s residential time. She also described her multiple attempts to resign as
case manager because the parties’ ongoing turmoil “made it impossible for [her]
to be effective.” But Hughes agreed to delay her resignation twice until after she
completed her August 2019 report.
Isabelle then started an arbitration proceeding, as required by the
parenting plan, to challenge Hughes’ recommendations.15 Undeterred, the
parties continued litigating their disputes in the trial court. Isabelle applied for a
writ of garnishment in the amount of $113,211. Sean responded with a series of
pleadings seeking to stay enforcement of the judgment, disgorge garnished
funds, and claim an exemption. On September 13, 2019, the trial court entered a
13
Hughes’ report states that the court denied Isabelle’s motion to remove her as case
manager, but neither the pleadings nor the order are in the appellate record.
14
Sean, who is an attorney licensed in Washington, represented himself below and
continues to do so on appeal.
15
This arbitration has been completed, but any decision arising from that process is
neither in the record nor an issue before us now.
6
No. 81002-2-I/7
partial judgment and order to pay the writ of garnishment and denied Sean’s
exemption claim.
Also in September 2019, Sean filed a “Motion to Modify the Parenting
Plan, Immediately Reinstating the Parenting Plan Previously in Place,” claiming
that the parenting plan was not in the child’s best interest and there was no need
for him to establish a substantial change in circumstances.
In November 2019, Sean served a subpoena duces tecum on his child’s
school to produce all educational records and correspondence. He moved to
waive the civil fees and surcharges and to proceed “in forma pauperis.” Isabelle
moved to quash the subpoena and requested an order clarifying the sole
decision-making provision in the parenting plan.
In December 2019, the trial court granted Isabelle’s motion to quash,
ordered that “[n]o documents shall be disclosed under that subpoena,” and
clarified that Isabelle “shall continue to have sole discretion as to the child’s
health, medical and educational decisions in all regards.” The court also found
Sean did not meet his burden to establish adequate cause to hold a hearing on
the motion to modify the final parenting plan and entered an “Order Denying
Adequate Cause/Motion To Modify.” The court denied Sean’s motion to proceed
in forma pauperis and stated in its order:
Respondent is reminded of the court’s order of July 9, 2018,
allowing ONE MOTION PER YEAR, preceded by a request for
PERMISSION TO FILE SUCH MOTION. It is still in effect. Thus,
Respondent’s list of upcoming motions (in his motion to proceed in
forma pauperis) is not pertinent.
7
No. 81002-2-I/8
On January 8, 2020, Sean filed a notice of appeal, challenging the trial
court’s December 2019 orders.16
On January 21, 2020, we issued our opinion in Kuhlmeyer I, in which we
affirmed the trial court’s confirmation of the arbitration award and concluded (1)
Sean’s argument that the arbitrator was partial had “no merit” and (2) his claim
that “the arbitrator refused to consider multiple declarations from ‘people attesting
Isabelle was making false claims,’ and ‘had substantial anger, drinking, and
mental-health issues,’ ” was “not supported by the record.”17 We also rejected
Sean’s contention that the arbitrator erred by
(1) refusing to acknowledge Isabelle’s allegations that he
committed domestic violence were false; (2) refusing to analyze
Isabelle’s dishonesty; (3) improperly analyzing the grounds to issue
a restraining order against him; (4) wrongly imposing a 60-month,
instead of a 12-month, restraining order; (5) failing to correct a
finding of “bad faith” entered in the final orders that was never
litigated in the arbitration; (6) failing to reprimand Isabelle’s counsel
for “using highly inflammatory language” and insulting him; (7)
failing to award him “substantially equal” parenting time and
improperly analyzing the statutory factors to impose limitations on
his parenting time and decision-making authority; and (8) dividing
the assets and debts inequitably.[18]
Ultimately, we held that Sean could not vacate the arbitration award under RCW
7.04A.230(1) because he had failed to satisfy his burden of proof.19 We also
affirmed “all of the [trial court’s] orders entered in this case” between February
16
Originally, Sean labeled this as a “Fourth Notice of Appeal” and sought to include
review of the orders in Kuhlmeyer I. But, as noted in that opinion, we denied Sean “permission to
amend the notice of appeal in No. 78765-9-I,” denied him “permission to expand the issues in
[appeal No. 78765-9-I] beyond those identified in [his] opening brief,” and denied his request for
any “other relief.” Kuhlmeyer I, slip op. at 10 n.12. Instead, this court assigned Sean’s January
2020 notice of appeal a new appellate cause number and commenced the current appeal.
17
Kuhlmeyer I, slip op. at 6-8.
18
Kuhlmeyer I, slip op. at 8 n.10.
19
Kuhlmeyer I, slip op. at 9.
8
No. 81002-2-I/9
2018 and December 2018 because “Sean’s claims of error [were] insufficiently
briefed.”20
Following Kuhlmeyer I, in spring 2020, Sean (1) submitted in the trial court
a “request to file a Motion for Contempt” against Isabelle; (2) “repeatedly and
without permission contacted” the trial court by e-mail, “inquiring as to the status
of his motion”; (3) filed “copies of memos to opposing counsel and the case’s
arbitrator entitled ‘Threats’ to pursue further litigation”; and (4) filed an eight-page
“Memo of Law on Parental Alienation.”21 On May 8, 2020, the trial court denied
Sean’s request for permission to file a motion for contempt and entered an order
warning Sean that his e-mails to the court and filing of frivolous pleadings “may
be met with sanctions.” Sean sought review of this order in a “Second Notice of
Appeal” filed in June 2020.22
ANALYSIS
Sean asks us to “find error in the below proceedings” and “reverse and
remand,”
with orders to reassign the case to an experienced family law judge
. . . for a complete review, including all judicial findings and
outcomes, to ensure all rulings of the court and arbitrator comply
with the law, and all challenged evidence meet standards required
by the rules of evidence.
Isabelle asks us to dismiss Sean’s appeals because they are untimely, previously
20
Kuhlmeyer I, slip op. at 9-10, 4.
21
Of all the submissions mentioned, only Sean’s Memo of Law on Parental Alienation is
in the appellate record.
22
Sean’s second notice is 15 pages of argument. It includes 8 pages of “issues” he
wants reviewed, states he is “in the process of preparing” claims in federal court against “various
judicial officers” involved in his case, lists 3 pages of requested relief, and attacks the trial judge’s
qualifications. But Sean does not attach “a copy of the signed order or judgment” involving any of
these issues. RAP 5.3(a).
9
No. 81002-2-I/10
litigated, and they violate the rules of appellate procedure.
Scope of Appellate Review
We first define the scope of our review by determining which orders and
decisions are properly before us.
A. Law of the Case
In these appeals, Sean continues to dispute the May 2018 arbitration
ruling, attack the trial court’s 2018 orders requiring him to obtain permission prior
to filing additional pleadings, and challenge the court’s 2018 dissolution orders.
But we have already terminated review of those orders in Kuhlmeyer I and Sean
did not seek review in the Supreme Court.
“Under the doctrine of ‘law of the case,’ as applied in this jurisdiction, the
parties, the trial court, and this court are bound by the holdings of the court on a
prior appeal until such time as they are ‘authoritatively overruled.’ ” Greene v.
Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1966) (quoting Adamson v. Traylor,
66 Wn.2d 338, 339, 402 P.2d 499 (1965); Baxter v. Ford Motor Co., 179 Wash.
123, 127, 35 P.2d 1090 (1934)). This doctrine is applied
in order “to avoid indefinite relitigation of the same issue, to obtain
consistent results in the same litigation, to afford one opportunity for
argument and decision of the matter at issue, and to assure the
obedience of lower courts to the decisions of appellate courts.”
State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104 (2003) (quoting 5 AM. JUR.
2D Appellate Review § 605 (2d ed. 1995)). Thus, questions that we decided in a
prior opinion or that we could have decided if raised on appeal “ ‘will not again be
considered on a subsequent appeal if there is no substantial change in the
10
No. 81002-2-I/11
evidence.’ ” Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196(1988) (quoting Adamson, 66 Wn.2d at 339).
In Kuhlmeyer I, we affirmed the arbitration award and all of the trial court
orders entered between February and December 2018. Kuhlmeyer I, slip op. at
9-10, 4. Our holdings in Kuhlmeyer I are the law of the case. We thus adhere to
our prior determinations and decline Sean’s request to revisit them.23
B. Untimely Claims and Undesignated Orders
Sean challenges the trial court’s order quashing his subpoena duces
tecum for the child’s educational records.24 But Sean failed to timely appeal that
order. RAP 5.2(a) requires an appellant to file a notice of appeal within “30 days
after the entry of the decision of the trial court that the party filing the notice
wants reviewed.” Here, Sean filed his notice of appeal on January 8, 2020, more
than 30 days after the court entered the order to quash on December 6, 2019.
See RAP 18.6(a) (computation of time). Nor did Sean ask us to enlarge the time
to file his appeal and consider its merits. See RAP 18.8. Sean is not entitled to
appellate review of the trial court’s order granting Isabelle’s motion to quash the
subpoena.
Nor can Sean obtain review of the remaining orders and decisions that he
failed to timely appeal. Sean asks us to review an August 2019 writ of
23
While “[r]econsideration of an identical legal issue in a subsequent appeal of the same
case will be granted where the holding of the prior appeal is clearly erroneous and the application
of the [law of the case] doctrine would result in manifest injustice,” Folsom, 111 Wn.2d at 264,
Sean fails to show that Kuhlmeyer I was clearly erroneous or that manifest injustice results from
applying the doctrine.
24
Sean’s briefing alludes to a December 2019 subpoena duces tecum for medical
records, but that document is not in the record.
11
No. 81002-2-I/12
garnishment, a September 2019 partial judgment and order to pay the writ, and
the trial court’s September 2019 denial of his request for an order to show cause
for a contempt hearing against Isabelle. But Sean did not appeal any of these
decisions within 30 days of their entry. RAP 5.2(a). Sean’s January 2020 notice
of appeal also did not designate any of these decisions for our review. RAP
5.3(a)(3) requires that a notice of appeal “designate the decision or part of
decision which the party wants reviewed.”
C. Inadequate Appellate Record and Briefing
Sean also appealed and designated the May 2020 order denying him
permission to file a motion for contempt. But we cannot review this order
because the record does not include a copy of Sean’s request for permission to
file the motion. It is the appellant’s burden to provide a sufficient record to review
the issues raised on appeal. RAP 9.1; In re Marriage of Haugh, 58 Wn. App. 1,
6, 790 P.2d 1266 (1990). Sean has failed to satisfy his burden. Without Sean’s
request for permission to file the motion for contempt and any related pleadings,
we are unable to fully appreciate the procedural background or discern the basis
for the trial court’s denial. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1251 (1995) (issues raised but not in the record cannot be considered on appeal)
Additionally, even if the request for permission were in the record, Sean
has failed to support this claim with authority or argument. RAP 10.3(a)(6)
requires parties to provide “argument in support of the issues presented for
review, together with citations to legal authority and references to relevant parts
of the record.” Because we need not consider arguments that are not supported
12
No. 81002-2-I/13
by any reference to the record or by citation of authority, we decline to consider
Sean’s appeal of the May 2020 order denying him permission to file a motion for
contempt. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).
D. Mootness
In April 2020, Sean filed his Memo of Law on Parental Alienation to
provide notice in the record that “April 25th is Parental Alienation Awareness
Day.” The trial court told Sean that the memo had “no bearing on this case” and
was “not in response to any motion or request by the court.” The court reminded
Sean that “frivolous pleadings are an abuse of the court process and prohibited.”
Sean now asks that “this court read the entire eight-page memo.” Because we
can provide no further relief on this issue, we dismiss it as moot. In re Marriage
of T, 68 Wn. App. 329, 336, 842 P.2d 1010 (1993) (a case is moot when the
court cannot provide adequate relief to the parties and the issues are thus merely
academic).
E. Appealable Orders
The scope of Sean’s appeals is limited to the trial court’s December 2019
orders denying his motion to modify the final parenting plan and denying his
request to proceed in forma pauperis.
13
No. 81002-2-I/14
Parenting Plan Modification
Sean contends the trial court erred by applying the wrong legal standard in
denying his request for a hearing on his motion to modify the parenting plan.25
We disagree.
We review a trial court’s order on modification of a parenting plan for an
abuse of discretion. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d
1239 (1993). A trial court abuses its discretion when it applies an incorrect legal
standard. In re Marriage of Rostrom, 184 Wn. App. 744, 750, 339 P.3d 185(2014).
RCW 26.09.260 and .270 govern the modification of parenting plans. In re
Parentage of C.M.F., 179 Wn.2d 411, 419, 314 P.3d 1109 (2013). When seeking
to modify an existing parenting plan, RCW 26.09.270 requires that a party first
“submit together with his or her motion, an affidavit setting forth facts supporting
the requested order or modification,” and directs the trial court to “deny the
motion unless it finds that adequate cause for hearing the motion is established
by the affidavits.”26 But a court will not modify a parenting plan unless it finds 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 interests of the child.” RCW 26.09.260(1).
25
The trial court treated Sean’s motion to modify as a petition for “adequate cause to
modify” the final parenting plan.
26
“The primary purpose of the threshold adequate cause requirement is to prevent
movants from harassing nonmovants by obtaining a useless hearing.” In re Marriage of Adler,
131 Wn. App. 717, 724, 129 P.3d 293 (2006). “[A]t the very minimum, adequate cause under
RCW 26.09.270 means a showing ‘sufficient to support a finding on each fact that the movant
must prove in order to modify.’ ” In re Custody of E.A.T.W., 168 Wn.2d 335, 347, 227 P.3d 1284(2010) (quoting In re Marriage of Lemke, 120 Wn. App. 536, 540, 85 P.3d 966 (2004)).
14
No. 81002-2-I/15
A different process is triggered when a parenting plan is left “open.” See
Adler, 131 Wn. App. at 724-25. That is, when the trial court exercises its
equitable power to defer a permanent decision on a parenting plan for a limited
amount of time after entry of the decree. In re Marriage of Possinger, 105 Wn.
App. 326, 336-37, 19 P.3d 1109 (2001). When a parenting plan is “open,” the
trial court’s final decision follows the criteria for establishing a permanent
parenting plan in RCW 26.09.187, not the substantial change in circumstances
standard of RCW 26.09.260. Possinger, 105 Wn. App. at 337; see Adler, 131
Wn. App. at 725 (“Possinger establishes that at the time of dissolution the trial
court has the authority to build in a review of the terms of the parenting plan.”).
Here, Sean argues the trial court left the residential terms of the parenting
plan “open” subject to case manager Hughes’ review, so “the ‘best interests’
standard per RCW 26.09.187” applied to his motion. The record does not
support his argument. The final parenting plan provides that the case manager
will conduct a review “to assess [the child]’s progress in school and in therapy as
well as to monitor both parents’ compliance with their respective obligations
provided the residential schedule Paragraph 8 has been followed.” The plan
requires the case manager to summarize her review in a written report to “be
distributed to the parties and filed” in the trial court. It also directs Hughes to
include in her report “recommendations, if any, for elimination of or change in
supervision, reduction or expansion of residential time, and/or contact between
the parties.” Hughes completed her review and filed a report with her
recommendations in August 2019.
15
No. 81002-2-I/16
In its order denying Sean’s motion to modify the parenting plan, the court
determined that the plan was no longer “ ‘open’ ” for review. It explained, “The
Plan, entered June 25, 2018, is not ‘open’ and therefore not subject to a ‘new’
plan. The only ‘open’ aspect of the Plan when entered was review by a case
manager. That has been completed.” Because the parenting plan was no longer
subject to Hughes’ review and recommendation, the court correctly determined
the plan was final and any modification to the plan is subject to the strict
standards of RCW 26.09.260.27 Sean did not support his motion with evidence of
a substantial change in circumstances, so the court correctly determined that he
failed to show adequate cause.
Sean fails to establish that the trial court applied an incorrect legal
standard or otherwise abused its discretion in denying his motion to modify the
parenting plan.
In Forma Pauperis
Sean claims the trial court erred by “refusing” to acknowledge his
“devastated finances” in denying his GR 34 motion for waiver of filing fees and
surcharges and by refusing to let him proceed in forma pauperis.
Any individual, on the basis of indigent status as defined herein,
may seek a waiver of filing fees or surcharges the payment of
which is a condition precedent to a litigant’s ability to secure access
to judicial relief from a judicial officer in the applicable trial court.
GR 34(a); Jafar v. Webb, 177 Wn.2d 520, 523, 303 P.3d 1042 (2013) (holding in
27
That the parties were allowed to arbitrate any disputes about the case manager’s
recommendations and have the arbitrator’s decision later reviewed by the trial court does not
change our analysis. The court left the parenting plan open only until the case manager filed her
report, not until all appeals of that report were concluded.
16
No. 81002-2-I/17
a civil case that “GR 34 provides a uniform standard for determining whether an
individual is indigent and further requires the court to waive all fees and costs for
individuals who meet this standard”). We review a court’s interpretation and
application of GR 34 de novo. Jafar, 177 Wn.2d at 526, 528.
Here, Sean told the trial court, “I need this finding of in forma pauperis as
a way of lightening the financial load on me, in the hopes that I can either begin
to financially recover, or, that enough time passes so I can qualify for
bankruptcy.”28 But the court denied Sean’s motion “because there [was] no
pending filing of a motion for which fees [were] due.” It also explained, “In forma
pauperis is not designed for and would not affect payment of child support,
garnishment, etc. It is only to allow waiver of the fee / cost to file a motion.”
Even if Sean established indigency, we conclude he was not entitled to
the relief he requested. He did not have any pending motions or petitions for
which the payment of court costs and charges was a prerequisite. Nor was it his
intention to use the order of indigency to “secure access to judicial relief.” GR
34(a). Rather, his clear objectives were to use the order in negotiations with the
Internal Revenue Service, as leverage against “other creditors,” and as a tool to
manipulate a future bankruptcy. The court properly denied Sean’s motion.
Attorney Fees and Sanctions
Both Sean and Isabelle request an award of fees on appeal under RAP
18.1 and RCW 26.09.140. After considering their arguments and relative ability
28
Sean also states that he filed his motion “because it would represent a judicial finding
of [his] poverty which would assist him in negotiating with other creditors including the [Internal
Revenue Service].”
17
No. 81002-2-I/18
to pay, we exercise our discretion under RCW 26.09.140 and deny both requests
for fees. We also deny both parties’ request to impose sanctions under RAP
18.9(a). Sean’s appeal was not “ ‘so devoid of merit that no reasonable
possibility of reversal exists.’ ” In re Marriage of Greenlee, 65 Wn. App. 703,
710, 829 P.2d 1120 (1992) (quoting Chapman v. Perera, 41 Wn. App. 444, 455-
56, 704 P.2d 1224 (1985)). And we reject Sean’s contention that his “appeal was
only necessary because of Isabella’s continued intransigence.”
We affirm the trial court’s orders.
WE CONCUR:
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