In Re The Marriage Of: Philippe Chainier, And Kellie Ann Chainier ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 79819-7-I
PHILIPPE CHAINIER, DIVISION ONE
Appellant, UNPUBLISHED OPINION
and
KELLIE ANN CHAINIER,
Respondent.
SMITH, J. — Philippe Chainier appeals multiple orders entered in the
dissolution trial of his marriage to Kellie Ann Chainier. With respect to the
parties’ property, we hold first that the court’s valuation of Philippe’s1 separate
property was not supported by substantial evidence. Second, we hold that the
characterization of Philippe’s contribution to the down payment on the family
home as community property was supported by substantial evidence. Third,
because the equitability of the court’s property division turns on the value of
Philippe’s separate property, we direct the court to reconsider the division of
property on remand.
With respect to child support, substantial evidence supports the court’s
valuation of Kellie Ann’s income from stock dividends. However, the court erred
in excluding Kellie Ann’s Restricted Stock Units (RSUs) as income, and the
1
Because the parties share a last name, we refer to them by their first
names for clarity.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79819-7-I/2
court’s determination of Philippe’s income is not supported by substantial
evidence because it depends on an erroneous citation of the record. Moreover,
the court improperly exceeded the standard support obligation without justifying
the increase with specific findings, as required by In re Marriage of McCausland,
159 Wn.2d 607, 620, 152 P.3d 1013 (2007). Therefore, on remand the court
must calculate the parties’ child support obligations and consider whether a
deviation from the standard calculation is warranted and supported by the
evidence.
With respect to the parenting plan, we hold that the court-imposed
limitations on Philippe’s access to his children were not “reasonably calculated to
protect” the children from harm. See RCW 26.09.191(2)(m)(i). Specifically, the
court’s requirements that Philippe abstain from drugs and alcohol and complete a
step parenting class were not supported by relevant findings and should be
stricken on remand. Furthermore, the court’s requirement of multiple
Washington-based domestic violence (DV) treatment programs went beyond any
witness’s recommendations, were prohibitive barriers to Philippe’s ability to
spend time with his children, and were not supported by specific findings. On
remand, the court should impose limitations that adequately address the court’s
concerns for the children’s safety and address the issue of Philippe’s access to
the ordered services.
Finally, because Philippe’s actions before and during trial did not rise to
the level of intransigence, the court erred by awarding fees to Kellie Ann. We
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decline to award attorney fees to either party on appeal or assign the case to a
different judge on remand.2
FACTS
Philippe and Kellie Ann were married for 11 years before they separated
in June 2017. They have two children, who were 1 and 4 at the time of
separation. Before their separation, the family lived in a home on Mercer Island
that Philippe and Kellie Ann purchased together.
Both parties had considerable income and assets from their work and
family businesses. Kellie Ann was the director of the government security
program at Microsoft and owned a 20 percent interest in her family’s real estate
business, Allen G. Cox Family LLC. In addition to her Microsoft salary, she
received RSUs from Microsoft and both monthly and annual distributions from
Cox Family.
Philippe was the commercial director for his family’s wine business, SAS
Pierre Chainier, which required regular travel. He also owned shares in the
family’s French holding company, SARL Financiere Chainier. SARL Financiere
Chainier owns SAS Pierre Chainier, which in turn has ownership interests in
multiple other companies in the wine industry. Philippe’s direct ownership
interest in SARL Financiere Chainier is a 7.5 percent direct share, but he also
inherited a 25.89 percent share in remainder interest, which he cannot benefit
2 Philippe also assigns error to several of the court’s findings and
conclusions but does not support these assignments of error with argument,
citations to the record, or citations to authority. Accordingly, we do not address
these assignments of error. Billings v. Town of Steilacoom, 2 Wn. App. 2d 1, 21,
408 P.3d 1123 (2017).
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from until his father’s death.
In July 2017, Philippe filed for divorce. The parties conducted extensive
discovery and began trial in November 2018. Trial lasted 16 days spread over 2
1/2 months. The court found that Philippe had committed domestic violence (DV)
against Kellie Ann, and accordingly placed limitations on his residential time with
the children, subject to the completion of various DV treatment programs. The
court also ordered significant child support, deviating upward from the standard
calculation due to the parties’ income and standard of living. In dividing the
parents’ assets, the court found that Philippe’s expert drastically understated the
value of his assets. The court calculated its own value of SARL Financiere
Chainier’s vineyards and added this value to the expert’s valuation of the
company, which included the vineyards. Finally, because the court found that
Philippe had been intransigent during trial and discovery, it awarded attorney
fees to Kellie Ann. Philippe appeals the court’s division of property, parenting
plan, and child support order.
ANALYSIS
Standard of Review
Court orders resulting from a dissolution involve mixed issues of law and
fact. Valuation of property is a question of fact, and we will not disturb the
findings if supported by substantial evidence. See In re Marriage of Hall, 103
Wn.2d 236, 246, 692 P.2d 175 (1984) (valuing goodwill). Substantial evidence is
evidence “which is sufficient to persuade a fair-minded person of the truth of the
matter asserted.” In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 5464
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(2012). By contrast, the trial court’s characterization of property as either
community or separate property is a question of law which we review de novo. In
re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). Finally,
the court’s distribution of property is reviewed for abuse of discretion. Soltero v.
Wimer, 159 Wn.2d 428, 433, 150 P.3d 552 (2007). A court abuses its discretion
if it bases its decision on untenable grounds. Soltero, 159 Wn.2d at 433.
We review parenting plans and child support awards for abuse of
discretion, except to the extent that they involve interpretation of statutes, which
we review de novo. In re Marriage of Condie, 15 Wn. App. 2d 449, 459, 472, 475
P.3d 993 (2020); Anthis v. Copeland, 173 Wn.2d 752, 755, 270 P.3d 574 (2012).
Valuation, Characterization, and Division of Property
Philippe contends that the trial court incorrectly valued his separate
property, mischaracterized his contribution to the down payment for their
residence, and failed to equitably divide the parties’ property. We hold that
substantial evidence supports the court’s characterization of the property but
does not support its valuation of Philippe’s separate property. Accordingly, on
remand, the court will determine the value of Philippe’s property based on the
evidence presented at trial and divide the property equitably in light of the value
determined.
1. Valuation of Property
First, Philippe contends that the court miscalculated the value of his
shares in his family’s company, including those he inherited from his mother. We
agree. “Valuation of the shares of a closely held corporation presents a difficult
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problem, calling for the careful weighing of relevant facts and the ultimate
exercise of reasoned judgment.”3 In re Marriage of Berg, 47 Wn. App. 754, 756-
57, 737 P.2d 680 (1987) (footnote omitted). Thus, whatever approach the court
takes, it “‘must include proof of value by any techniques or methods which are
generally considered acceptable in the financial community.’” Eagleview Techs.,
Inc. v. Pikover, 192 Wn. App. 299, 309, 365 P.3d 1264 (2015) (quoting
Weinberger v. UOP, Inc., 457 A.2d 701, 703 (Del. 1983)).
Here, the trial court’s valuation of Philippe’s interest in SARL Financiere
Chainier was not supported by acceptable financial valuation techniques,
because the court’s findings exhibited misinterpretations of the evidence and
inconsistent reasoning.
Philippe’s financial expert, Steve Kessler, estimated that the “fair value” of
SARL Financiere Chainier was €8,455,422. Kessler explained that fair value
represents the value of the interest to the holder, whereas “fair market value”
represents the value a willing buyer would pay a willing seller. Kessler calculated
the company’s fair value by starting with the book values4 of the company’s
assets, including its vineyards, and then accounting for depreciation.
However, the court found that Kessler used the book value of the
company and did not “adjust[] for the fair market value.” The court then found
that it was “nonsensical to think that the book value . . . is the fair market value,”
3“A closely held corporation is one in which the stock is held in a few
hands, or in a few families, and wherein it is not at all, or only rarely, dealt in by
buying and selling.” In re Marriage of Berg, 47 Wn. App. 754, 756 n.2, 737 P.2d
680 (1987).
4 The book value of an asset is the original price adjusted for depreciation.
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and that accordingly there was “evidence to support an adverse inference that
the fair market value is greater than what Mr. Kessler opined.” The court
proceeded to use an approach suggested by Kellie Ann’s counsel, noting the
addition of two hectares5 of land in a 2017 company report, along with an
increase of €42,644 in the value of the company’s land for each one. It then
multiplied this value per hectare by 250 (representing the approximately 250
hectares of land which SARL Financiere Chainier has an ownership interest in)
and got an approximate total of €10.625 million. The court declared that this new
value was a “strong impeachment of Mr. Kessler’s valuation” and found Kessler
not credible. Finally, the court chose to use Kessler’s valuation of the business,
which included the vineyards, and then add a separate €8,667,282 for the value
of the vineyards.6
The court’s approach does not appear to be well reasoned. First, fair
market value is the common way to value marital assets, but when the fair
market value of an asset cannot be determined, fair value is an appropriate
alternative. 20 SCOTT J. HORENSTEIN, W ASHINGTON PRACTICE: FAMILY AND
5 A hectare is “a metric unit of area equal to 100 ares or 10,000 square
meters.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1048 (2002).
6 The court seems to have ultimately settled on this value for the vineyards
based on its finding that the €10.625 million value was €8.6 million more than
“the book value or cost approach used by Mr. Kessler.” Specifically, it appears to
have adopted Kellie Ann’s suggestion to subtract Kessler’s estimate of the book
value of two companies owned by SAS Pierre Chainier which owned vineyards.
This appears logically flawed for several reasons: (1) Kessler’s fair value
estimate of these companies was substantially more than what he recorded as
the “book value,” (2) the value of the companies included more assets and
liabilities than just the vineyards, and (3) SAS Pierre Chainier only owned a 29
percent interest in one of these companies, but the court’s addition of the entire
value would suggest it owned a 100 percent interest.
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COMMUNITY PROPERTY LAW § 32:6 (2020); see, e.g., In re Marriage of Fleege, 91
Wn.2d 324, 326, 330, 588 P.2d 1136 (1979) (goodwill of a professional practice,
although not “readily marketable,” should be valued at dissolution in terms of the
“value . . . to the professional spouse”). Stocks in a closely held corporation,
such as SARL Financiere Chainier, are commonly valued in terms of fair value
because they “by definition do[ ] not have a fair market value, since a market
wherein a willing buyer will meet a willing seller . . . generally does not exist.”
Suther v. Suther, 28 Wn. App. 838, 843, 627 P.2d 110 (1981). The court’s focus
on fair market value and misapprehension of what valuation method Kessler was
using was therefore error. Further, as Philippe points out, there was no
testimony explaining the meaning of the €42,644 figure, and if the court had used
a similar difference in a report from a different year, it would have found the value
of a hectare to be €14,965, not €42,644.
The court’s explanation of why it did not find Kessler credible depended on
(1) its mischaracterization of Kessler as presenting the court with only the book
value of the company, (2) its assertion that Kessler’s estimates were not credible
as fair market values, despite the fact that Kessler was estimating fair values, not
fair market values, and (3) its identification that the court’s estimate, which we
have noted was mathematically inconsistent, was significantly higher than
Kessler’s estimate. Accordingly, the court made a determination of the value of
the vineyards without using “‘techniques or methods which are generally
considered acceptable in the financial community’” and then compounded this
problem by adding the value of the vineyards to a valuation of the business that
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already included the vineyards. Eagleview, 192 Wn. App. at 309 (quoting
Weinberger, 457 A.2d at 713). Because its valuation is not financially sound, the
court must make a proper determination of SARL Financiere Chainier’s value on
remand.
Kellie Ann contends that the court did not need to use accepted methods
of valuation because it was using an adverse inference against Philippe. This
too is problematic. The court found that Philippe’s testimony regarding the value
of the company was “evasive and not credible” and that Philippe did not offer
appraisals of the vineyards or provide Kellie Ann with the information that would
enable her to obtain appraisals. Kellie Ann contends that Philippe’s resistance to
discovery left the court no choice but to draw an adverse inference.
CR 37(b)(2)(A) permits a court to assume facts to be established after a “party
fails to obey an order to provide or permit discovery.” Here, Kellie Ann did not file
a motion to compel, nor did the court grant one. Furthermore, when punishing a
discovery violation, “the court should impose the least severe sanction that will
be adequate to serve the purpose of the particular sanction.” Burnet v. Spokane
Ambulance, 131 Wn.2d 484, 495-96, 933 P.2d 1036 (1997). Neither Kellie Ann
nor the court provided any authority that establishes that such a sweeping
adverse inference is appropriate in these circumstances. Therefore, the court
erred in its valuation of Philippe’s family business.
Next, the court erred in its calculation of the value of Philippe’s stocks in
this company. As noted, many of Philippe’s stocks were remainder interests,
meaning that Philippe’s use is limited until his father dies. For future interests
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such as these, the court in a dissolution proceeding should determine their
present value. See In re Marriage of Wright, 147 Wn.2d 184, 196, 52 P.3d 512(2002) (determining present value of a pension). Experts at trial testified to
different possible formulas for determining present value, which included
applying a 6 percent discount over 10 years or multiplying the future value by 79
percent. However, the court chose to discount these remainder interests to 73.1
percent of their future value. This number was not offered in evidence but,
instead, seems to have come from Kellie Ann misciting her expert. Kellie Ann
contends that this value is acceptable because it is still within the range of values
testified to by different experts. Although this is true, the court’s calculation is
nonetheless not supported by the evidence where it is based on an erroneous
citation to the evidence. See, e.g., City of Vancouver v. Pub. Emp’t Relations
Comm’n, 180 Wn. App. 333, 364, 325 P.3d 213 (2014) (court’s finding that
employer asserted something that employer’s witnesses had in fact denied was
not supported by substantial evidence). Thus, the court must properly determine
the value of Philippe’s stocks on remand.
The court’s errors also extend to its valuation of Philippe’s inheritance
from his mother. The inheritance includes shares in the family company, and the
court applied its same reasoning regarding the value of the company and
Philippe’s shares to its valuation of his inheritance. It also made other findings
that were not supported by the record, including that Phillipe provided no
appraisals of his family’s residential properties. Therefore, on remand, the court
must also determine the appropriate value of Philippe’s inheritance based on the
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evidence presented at trial.
2. Characterization of Contribution to Family Home
Next, Philippe contends that the court mischaracterized his contribution to
the down payment for the family home as community property. The court found
that Philippe had received a gift of €68,602 from his grandmother, which was his
separate property, but that Philippe had given this money to the marital
community to pay for the house. Because the trial court’s finding is supported by
the evidence, we disagree with Philippe.
If a party establishes that property is separate, there is a presumption that
it will “remain[] separate property in the absence of sufficient evidence to show
an intent to transmute the property from separate to community property.” In re
Estate of Borghi, 167 Wn.2d 480, 484, 219 P.3d 932 (2009). While a spouse can
choose to gift separate property to the community, the mere fact that the title to
property changes from the name of a single spouse to both spouses is
insufficient to rebut this presumption. Borghi, 167 Wn.2d at 486. Here, the court
found that Philippe’s “gift letter” “gifting $84,400 to ‘Kellie Ann & Philippe
Chainier’” to be applied to the purchase of the home was “sufficient evidence to
show [Philippe’s] intent to convert the $84,400 gift from separate to community
property.” The letter labels Philippe the “Donor” and says he has “made a gift of
$84,400” to “Kellie Ann [and] Philippe Chainier.” This is sufficient evidence to
overcome the presumption and establish that the $84,400 was gifted to the
marital community.
Philippe disagrees, contending that this language was for the benefit of
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the lender and does not evidence donative intent. The cases he cites to this
effect do not support the proposition that a letter written for financial purposes
cannot be evidence of an intent to give money to the marital community. See
Borghi, 167 Wn.2d at 491 n.7 (explaining that the use of separate real estate to
secure a mortgage is immaterial to the characterization of the real estate but
may, for instance, create a community right of reimbursement on the mortgage);
Onewest Bank, FSB v. Erickson, 184 Wn. App. 462, 469, 337 P.3d 1101 (2014)
(discussing but not characterizing a “gift letter”), rev’d, 185 Wn.2d 43, 367 P.3d
1063 (2016). Because the letter was sufficient evidence to rebut the
presumption, we are not persuaded by Philippe’s contention.
3. Division of Property
Finally, the court must reconsider an equitable division of property on
remand. The court must consider the “economic circumstances of each spouse”
in its division of property, and in this case, it determined that the property division
was fair and equitable due in part to Philippe’s “extensive separate property.”
RCW 26.09.080. Because the value of Philippe’s property and his economic
circumstances must be determined on remand, the division of property must be
determined as well. See In re Marriage of Kile, 186 Wn. App. 864, 885, 347 P.3d
894 (2015) (“It is not clear in this case that the court would have divided the
property the same way had the assets been properly characterized. Under these
circumstances, remand is required to enable the trial court to make a just and
equitable division of the property considering its correct characterization.”).
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Child Support
Philippe contends that the court erred in valuing the parties’ income and in
deviating from the standard calculation of the support obligation. We agree.
“The child support statutes are expressly intended to divide the child
support obligation between parents in proportion to their income.” Condie, 15
Wn. App. 2d at 456. When determining income for purposes of child support, the
court must consider all sources of income7 except those excluded in
RCW 26.19.071(4). “A trial court’s failure to include all sources of income not
excluded by statute is reversible error.” In re Marriage of Bucklin, 70 Wn. App.
837, 840, 855 P.2d 1197 (1993). The statutes’ “expansive view” of income
includes “‘(1) a gain or recurrent benefit that is usually measured in money’ or
(2) the ‘value of goods and services received.’” Condie, 15 Wn. App. 2d at 455
(quoting W EBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1143 (2002)). After
determining income, the court looks to the child support schedule in
RCW 26.19.020 and allocates support obligations between the parents
proportionate to their net income. RCW 26.19.080(1). The court may make
additional provisions for health care costs, day care, or “special child rearing
expenses,” or may deviate from the standard calculation for the enumerated
reasons listed in RCW 26.19.075(1). RCW 26.19.080(2)-(3). In making such a
deviation, the court must include written findings of fact that consider the parents’
standard of living and the children’s special medical, educational, or financial
needs. RCW 26.19.020; McCausland, 159 Wn.2d at 620. It is not enough that
7 RCW 26.19.071(1) and (3).
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“cursory findings of fact and the trial record might appear to justify awarding a
child support amount that exceeds the economic table,” but rather the court must
enter sufficiently detailed findings to establish that the court properly exercised its
discretion. McCausland, 159 Wn.2d at 620.
Philippe first contends that the trial court incorrectly calculated his income.
The court found that Kessler testified that Philippe’s monthly gross income was
$14,421.42, and it then relied on this number to calculate Philippe’s net income.
This was incorrect. Kessler testified that Philippe’s gross income was
$11,000.00. The number used by the court was a different amount cited by
Philippe, which included costs paid directly to the French government. Because
the court erroneously cited the record in determining Philippe’s income,
Philippe’s income must be properly determined on remand.
Next, Philippe contends that the trial court incorrectly calculated Kellie
Ann’s income. He claims that the court undervalued Kellie’s distributions from
her family business and erred by excluding Kellie Ann’s RSUs from her income.
With respect to the distributions, the court found that Kellie Ann would
receive $2,000 per month. While there was some evidence in the record that
Kellie Ann received more in distributions, Kellie Ann’s brother testified that each
of the owners received $1,000 per month, as well as an additional distribution of
$10,000 to $15,000 annually. He testified that he expected the annual
distribution for the next few years would be “around 15 or plus thousand dollars.”
The court’s calculation of Kellie Ann’s distributions assumes an annual
distribution of $12,000, which, while lower than this last estimate, is within the
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range described by Kellie Ann’s brother. Accordingly, the court’s calculation is
supported by substantial evidence. See In re Marriage of Rockwell, 141 Wn.
App. 235, 248, 170 P.3d 572 (2007) (“If a trial court’s finding is within the range
of the credible evidence, we defer.”).
However, the court erred by excluding Kellie Ann’s RSUs from her
income. The court reasoned it did not need to include RSUs as income because
the “vast bulk of the RSUs that are vesting over the next two years are being
distributed as property.” However, all of a party’s income that is not specifically
excluded by statute must be included in child support calculations. In re Bucklin,
70 Wn. App. at 840. When RSUs vest, the holder gets a gain, the value of which
is taxed as ordinary income. Anat Alon-Beck, Unicorn Stock Options—Golden
Goose or Trojan Horse?, 2019 Colum. Bus. L. Rev. 107, 170 n.287 (2019).
Thus, RSUs are income, and because they are not excluded by the statute, they
must be included in child support calculations. RCW 26.19.071(4).
Kellie Ann contends that including RSUs for purposes of child support
would be erroneous when they were also distributed as property. We rejected a
similar argument in Condie, where we determined that counting unvested stocks
as a spouse’s separate property to be distributed to him and also as that
spouse’s income for determining child support obligations was not “repeatedly
distribut[ing]” the same property. 15 Wn. App. 2d at 469. Instead, we held that a
court “properly considered [a spouse’s] unvested stocks when analyzing the
overall fairness of the property distribution and when determining [the spouse’s]
ability to pay . . . child support.” Condie, 15 Wn. App. 2d at 469. As in Condie,
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the court here counted Kellie Ann’s RSUs as her separate property to be
distributed to her, but unlike Condie, the court failed to consider the RSUs for
purposes of child support as well as property distribution. See Condie, 15 Wn.
App. 2d at 469. Thus, the court erred by excluding Kellie Ann’s RSUs from her
income, and on remand, the court must calculate child support including this
value.
Finally, Philippe contends that the court erred in deviating from the
standard calculation. We agree. After determining the parties’ income, the court
concluded that the standard calculation established by the economic table
required monthly payments of $906.06. The court then took note of the
children’s standard of living, demonstrated by their large home, history of
traveling, private school attendance, and the fact that they had an au pair. It thus
concluded that their standard of living justified exceeding the standard calculation
to a monthly payment of $1,500.00. However, the court’s general findings did not
link the increase in support to specific expenses. Furthermore, the court then
made additional provisions for the payment of educational expenses and day
care, which suggest that the court’s departure from the standard calculation did
not correlate to its discussion of the children’s private school attendance.
Therefore, the court’s order falls short of the requirement that “the amount of
child support . . . be based on the correlation to the . . . children’s needs.”
McCausland, 159 Wn.2d at 620 n.6.
The court also erred by ordering that the additional expenses, including
educational expenses, medical expenses, and airfare for visitation, should be
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split 50-50 between the parties. This was error because these child rearing
expenses should be “shared by the parents in the same proportion as the basic
child support obligation”—that is, proportionate to their income.
RCW 26.19.080(2)-(3).
We reverse and remand for a proper determination of Kellie Ann’s income
to include her RSUs and of Philippe’s income based on a reasoned valuation
given the evidence submitted. After recalculating the parties’ income, the court
must determine the child support obligations of the parties, including whether a
deviation from the standard calculation is appropriate, based on the evidence
presented and supported by specific findings. Finally, the court must divide the
additional special expenses between the parents proportionate to their income.
Parenting Plan
Philippe challenges the parenting plan’s limitations on his residential time.
Specifically, he contends that the conditions for him to progress from the
parenting plan’s phase I to phase II are excessively restrictive. He specifically
challenges the court’s requirements that he (1) participate in a step parenting
class, (2) abstain from drugs and alcohol, and (3) complete both a Washington
domestic violence intervention program and the “DV Dads” program. We agree
that these requirements are overly restrictive because they are not supported by
the court’s findings.
“[T]he best interest of the child is ordinarily served when the existing
pattern of interaction between a parent and child is altered only to the extent”
necessitated by the divorce or required to protect the child. RCW 26.09.002.
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However, if the court finds a parent has a history of domestic violence, the court
must place limitations on the parent’s residential time. RCW 26.09.191(2)(a).
These limitations must be “reasonably calculated to protect the child from . . .
harm that could result if the child has contact with the parent.”
RCW 26.09.191(2)(m)(i). The limitations may include a requirement to complete
“relevant counseling or treatment.” RCW 26.09.191(2)(m)(i). However, if the
court “expressly finds that the parent’s conduct did not have an impact on the
child” or that, because contact between the parent and child will not harm the
child and the harmful conduct is unlikely to recur, applying limitations would not
be in the child’s best interests, then the court need not apply limitations.
RCW 26.09.191(2)(n).
Here, the court found, and Philippe does not contest, that Philippe had a
history of domestic violence against Kellie Ann. Accordingly, the court limited
Philippe’s residential time with the children under RCW 26.09.191. Under phase
I of the court’s plan, Philippe was permitted at most one overnight every two
weeks, along with limited afternoon visits. To progress to phase II, the plan
required Philippe to complete nine months of weekly group sessions in a DV
intervention program and then complete the DV Dads program. During this time,
Philippe was required to comply with the contract for the DV intervention program
and to abstain from mood and mind altering drugs, including alcohol and
cannabis. The plan also required Philippe to complete 12 sessions of parent
coaching, to take a step parenting class, and to “abstain from any corporal
punishment of the children, including pulling a child by the ear.”
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As an initial matter, the requirement that Philippe take a step parenting
class is not reasonably calculated to protect the children from harm. There was
no evidence during trial discussing the need for a step parenting class or
describing what it would entail. Because it is unclear what the court meant by
this order and there are no findings to support the requirement, this limitation is
not supported by substantial evidence.
The sobriety requirement is also not reasonably calculated to protect the
children based on the court’s findings. Philippe’s DV intervention program
required Philippe to abstain from drugs and alcohol, and Philippe does not
contend that it was inappropriate for the court to order him to comply with the
rules of the program. However, the court’s additional and separate requirement
that Philippe abstain from alcohol was not supported by any of its findings.8
Specifically, while there was some evidence in the record regarding alcohol use,
the court did not enter any findings about Philippe’s drinking or its effect on the
children. We therefore conclude that the court’s sobriety provision was not
reasonably calculated to protect the children and should be stricken on remand.
See In re Marriage of Underwood, 181 Wn. App. 608, 612-13, 326 P.3d 793(2014) (holding in a related context that, given parent’s liberty interest in the care
of their children and the legislature’s general policy of encouraging loving and
stable relationships between parents and children, the court must enter detailed
findings supporting its decision before potentially eliminating a parent’s
8
We note this requirement could have ramifications if, for instance, the
program changed its rules.
19
No. 79819-7-I/20
residential time with children).
We next conclude that, given the court’s lack of findings, the court’s DV
intervention program and DV Dads program requirements exceed the court’s
discretion. The parenting evaluator initially recommended that Philippe move to
phase II after completing 9 months of the DV intervention program and did not
recommend the DV Dads program. Later, the parenting evaluator provided an
updated recommendation that, in case Philippe moved to France, he should
complete 6 months of the intervention program before expanding his residential
time from two to four overnights per month and then complete the DV Dads
program before expanding residential time to eight overnights per month. A
different expert parenting evaluator testified that these recommendations were
excessive because Philippe’s therapist reported that Philippe was making
significant progress and was not a batterer. Furthermore, Philippe had to travel
regularly for his job, and this requirement was exacerbated when his mother died
and Philippe had to take on more clients in Europe. This was a significant barrier
on Philippe’s ability to comply with the court’s requirements, especially the
weekly intervention program which permits two absences in 90 days.
Given these facts, the trial court imposed a heavy burden on Philippe’s
ability to spend time with his children without including any supporting findings.
The trial court did not enter findings regarding why it exceeded the most onerous
conditions recommended by any expert in this case, whether it considered other
treatment options presented at trial that would allow Philippe more flexibility to
address these issues while complying with the requirements of his job, or how
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No. 79819-7-I/21
the restrictions serve the best interests of the children. The court did not include
any findings regarding why these particular restrictions are appropriate and
necessary to protect the children and did not appear to consider whether or how
Philippe could navigate them given his work schedule. Therefore, we hold that
the court abused its discretion in imposing these restrictions and the appropriate
restrictions must be determined on remand in light of the evidence presented.
See In re Parentage of A.F.M.B., 1 Wn. App. 2d 882, 888-89, 407 P.3d 1161(2017) (without findings explaining the court’s reasoning, record did “not establish
that the trial court made a tenable decision . . . especially in the absence of any
meaningful discussion” of father’s DV in the context of a parenting plan
provision).
Assignment to a Different Judge
Philippe requests that we order this case to be assigned to a different
judge on remand. We decline to do so.
A party may seek reassignment where “the trial judge will exercise
discretion on remand regarding the very issue that triggered the appeal and has
already been exposed to prohibited information, expressed an opinion as to the
merits, or otherwise prejudged the issue.” State v. McEnroe, 181 Wn.2d 375,
387, 333 P.3d 402 (2014) (footnotes omitted).
Philippe cites In re Marriage of Black, 188 Wn.2d 114, 137, 392 P.3d 1041(2017), in which the court explained that because evidence suggested that the
judge was biased against a party’s sexual orientation, the case should be
reassigned on remand. Our Supreme Court also has instructed a court to
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No. 79819-7-I/22
reassign a case “for the sole purpose of avoiding any appearance of unfairness
or bias.” In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779(2005).
Here, although Philippe contends that the judge appeared to be biased
against the French, the court’s findings and conclusions, even where erroneous,
do not appear to be based on judicial impropriety. The record, the court’s
findings, and the orders entered do not support a determination that the court
was biased. Philippe provides no persuasive basis to determine otherwise.
Thus, we decline to reassign the case on remand.
Attorney Fees
As a final matter, Philippe appeals the court’s award of attorney fees
below, and both parties request attorney fees on appeal. We reverse the award
of attorney fees below and decline to grant attorney fees on appeal.
An award of attorney fees in a dissolution proceeding is within the trial
court’s discretion. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d
157 (1999). The court must generally balance the needs of the party requesting
the fees against the opposing party’s ability to pay. Mattson, 95 Wn. App. at 604.
However, if a party has been intransigent, the financial need of the party seeking
the award is not relevant. Mattson, 95 Wn. App. at 604.
Here, the court entered several findings supporting its conclusion that
Philippe was intransigent, mainly related to Philippe’s failure to produce evidence
regarding the assets owned by SARL Financiere Chainier. These findings
alternately do not indicate intransigent behavior or are not supported by the
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No. 79819-7-I/23
record. Kellie Ann and Philippe each requested similar information regarding the
other’s interest in real property, and neither provided information regarding real
property owned by their family companies in response to these questions. The
court’s finding that Philippe’s “production did not mirror” Kellie Ann’s is not
supported by the record. Kellie Ann did not request information regarding these
assets until August 6, 2018, six months after her first discovery requests.
Philippe noted that it would take time to obtain this information because most
French businesses are closed in the month of August, but provided these
responsive documents by September 12, 2018. Accordingly, the record indicates
that, contrary to the court’s findings, Philippe provided information necessary to
value his property interests in France after he was asked to do so. As noted,
Kellie Ann never filed a motion to compel discovery, nor did the court grant one.
The court’s other findings supporting intransigence refer to the
extensiveness of discovery or the litigiousness of trial. For instance, the court
noted that Philippe objected to evidence offered by Kellie Ann and offered no
photographs of his property. The court did not explain why these strategic
choices would constitute intransigence. The court also found that Philippe
“undervalued his property interests by at least three to four times,” but this finding
depends on the court’s own unsupported valuation. Overall, the court’s finding of
intransigence was not supported by the record. Because intransigence was the
basis for the court’s order of fees, we conclude that the trial court based its
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No. 79819-7-I/24
decision on untenable grounds and reverse the award.9
Both parties request attorney fees on appeal under RCW 26.09.140,
which provides that an appellate court “may, in its discretion, order a party to pay
for the cost to the other party of maintaining the appeal and attorneys’ fees.”10
Given the extensive assets of both parties and our determination that Philippe
was not intransigent, we decline to award attorney fees.
We reverse and remand with instructions to determine the proper
9 Philippe presented additional evidence in his reply brief to support a
finding that Kellie Ann had access to financial information about his business.
Kellie Ann moved to strike this evidence. A party may provide additional
evidence on appeal if, among other requirements, it is needed to fairly resolve
the issues on appeal. RAP 9.11(a). Here, the evidence provided by Philippe
would not change the outcome and is not needed to resolve the issues on
appeal. Accordingly, we grant Kellie Ann’s motion.
10 RAP 18.1(c) requires parties to file financial affidavits at least 10 days
prior to the day the case is set, and to file answers to these affidavits within 7
days after service of the affidavit. Philippe filed a declaration of financial need on
January 5, 2021. Kellie Ann subsequently filed a declaration describing her
financial circumstances and challenging Philippe’s declaration on January 12,
after the deadline for filing a financial affidavit but within the deadline for filing an
answer. Philippe correctly noted that this answer was effectively an untimely
financial declaration and requested permission to file an answer. His January 19
answer then answered Kellie Ann’s financial declaration with a 31-page appendix
of new evidence regarding Kellie Ann’s finances. Kellie Ann subsequently filed
an “Objection and Motion to Strike Additional Evidence Offered in Answer” on
January 26, objecting to much of Philippe’s new evidence as hearsay. Philippe
filed a “Response to Respondent’s Objection and Motion to Strike” on February
2.
Given our authority under RAP 18.8(a), we grant Philippe’s request and
consider his answering declaration only to the extent it answers Kellie Ann’s
financial declaration. Although Kellie Ann claims she did not need to file a
financial affidavit because she is requesting fees on the basis of Philippe’s
intransigence, her financial information was still important for determining her
ability to pay Philippe’s fees. She chose to file this information, and Philippe had
the right to answer it. We grant Kellie Ann’s motion to strike the evidence in
Philippe’s answer that is impermissible hearsay. Ultimately, these protracted
motions do not change our decision with regard to attorney fees.
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No. 79819-7-I/25
valuation of Philippe’s separate property, to determine a just and equitable
distribution of the property, to recalculate child support based on the parties’
actual income, which includes Kellie Ann’s RSUs and a calculation of Philippe’s
income based on the evidence, and to determine the appropriate limitations on
Philippe’s residential time based on the evidence presented at trial.
WE CONCUR:
25