Opinion
42625-1-II
08-09-2012
In re the Parenting and Support of: O.G.F., a minor child, v. COLLEEN J. WASNER, RICHARD M. FELLOWS, Appellant,
UNPUBLISHED OPINION
HUNT, J.
Richard M. Fellows appeals the Thurston County Superior Court's grant of Colleen J. Wasner's motion to change venue, the findings of facts and conclusions of law that its commissioner entered in denying Wasner's motion to dismiss his parenting plan petition, the superior court's denial of his request for sanctions against Wasner, and its denial of his request to waive appellate filing fees. Fellows argues that the superior court (1) lacked jurisdiction to rule on Wasner's venue motion, (2) erred in denying his motion for sanctions against Wasner for filing her "frivolous" venue motion, (3) denied him procedural due process by editing the venue change order before entering it, and (4) erred in denying his request to waive the appellate filing fee because it had waived his filing fee for superior court. We affirm.
We do not consider Fellows' challenge to the commissioner's findings and conclusions because he has failed to assign error to them, contrary to RAP 10.3(a)(4) and (g).
Br. of Appellant at 11.
FACTS
Richard M. Fellows filed a petition for a parenting plan in Thurston County Superior Court in March 2011. Colleen J. Wasner moved to dismiss for lack of jurisdiction under RCW 26.27.201, arguing that Washington was not the home state of their child, who was the subject of Fellows' parenting plan petition. In May 2011, a superior court commissioner denied Wasner's motion to dismiss. In its findings of facts and conclusions of law, the commissioner stated that, although the child "has resided in Minnesota since December 2009 [the court had] continuing jurisdiction [over the] matter . . . based on its exercise of initial child custody jurisdiction" in September 2009. Clerk's Papers at 108.
In May 2011, the commissioner held a hearing to discuss its findings of facts and conclusions of law. Fellows challenged the commissioner's finding of fact that the child resided in Minnesota. The commissioner clarified that the finding of fact meant simply that the child "has been living in Minnesota for at least the last six months." Report of Proceedings (May 24, 2011) at 5. Fellows refused to sign the order denying Wasner's motion to dismiss.
Wasner moved the superior court to revise the commissioner's denial of her motion to dismiss Fellows' parenting plan petition; she also filed a motion to change venue to Minnesota. Wasner argued that (1) in denying her motion to dismiss, the commissioner had "failed to engage in the appropriate analysis"; and (2) the better forum was Minnesota, even "assum[ing] for the sake of argument . . . that the Washington court has the jurisdictional power." RP (Aug. 24, 2011) at 3. The superior court denied Wasner's motion to revise, stating, "I don't believe that the Commissioner made a mistake." RP (Aug. 24, 2011) at 21. Concluding that the RCW 26.27.261 factors supported a change of venue to Minnesota, the superior court granted Wasner's motion to change venue.
RP (Aug. 24, 2011) at 14.
The superior court denied Fellows' motion for reconsideration.
The draft order that Wasner provided to the superior court gave the "Petitioner" 30 days to file a "corresponding action" in Minnesota, which did not match the court's oral ruling directing Wasner, the captioned "Respondent, " to file within 30 days; thus, the court edited the order to correct the text by replacing "Petitioner" with "Respondent." CP at 105-06. At the end of the hearing, in Fellows' presence, the superior court directed Wasner to file a motion or action in Minnesota within 30 days and asked Fellows to stay and to review the order before its entry. The record does not show whether Fellows reviewed the order as requested, but it does show that he "refused to sign" it. CP at 106.
Fellows appeals. Ruling that Fellows' civil appeal lacked probable merit and that there appeared to be no right for review at public expense, the superior court denied Fellows' motion to waive appellate filing fees. Fellows then paid the appellate fees himself.
Wasner filed a motion on the merits. A commissioner of this court referred the motion to a panel of judges for consideration.
ANALYSIS
I. Venue
A. Jurisdicton
Fellows argues primarily that, when the superior court heard Wasner's motion to revise the commissioner's denial of her motion to dismiss, it lacked jurisdiction to rule on Wasner's companion motion to change venue. He relies on Thurston County Local Rule 94.14 subsection (b)(5)(A), which provides that no new factual material can be considered by a court hearing a motion to revise; and subsection (b)(6), which provides that a court hearing a motion for revision will not consider other issues unrelated to the revision request absent a "separate motion." Br. of Appellant at 9 (citing RCW 2.24.050).
Fellows contends that these rules
make it perfectly clear that the subject matter jurisdiction of a judge appointed to hear a motion to revise is limited strictly to matters of record before the commissioner that are related to the motion to revise. Given the context in the Rule, the requirement that issues not related to the motion for revision must be raised by "separate motion" is referring to a "separate motion to revise" that is supported by the trial court record.Br. of Appellant at 10 (emphasis added). Fellows did not raise this argument below.
But, because RAP 2.5(a)(1) allows a party to raise jurisdictional issues for the first time on appeal, we address Fellows' challenge to the superior court's jurisdiction over Wasner's venue-change motion in the same hearing during which the court considered her revision motion. See Br. of Appellant at 4 (framing issue as "whether a revision court has jurisdiction to hear a motion to transfer venue."). We hold that the superior court had jurisdiction to consider both motions at the same hearing.
RCW 2.24.050 provides:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.
In short, when the superior court considers a motion to revise, RCW 2.24.050 limits the court to "the records of the case, and the findings of fact and conclusions of law entered by the court commissioner." Similarly, Thurston County Local Rule 94.14(b)(5)(A) provides that a court hearing a motion to revise cannot consider new factual material.
RCW 2.24.050, however, does not prohibit the superior court's considering other matters properly brought before it by separate motion, so long as the court's consideration of the motion to revise is limited to the commissioner's fact findings and legal conclusions. Nothing in the Revised Code of Washington, the Thurston County Local Rules or in any published Washington case supports Fellows' contention that, during hearings on motions to revise, superior courts lack jurisdiction to address other matters. Wasner filed a separate motion for a change of venue; the superior court had jurisdiction and properly considered it.
More specifically, nothing supports Fellows' reading of Thurston County Superior Court Local Rule 94.14(b)(6) as allowing the superior court hearing the motion to revise also to hear unrelated matters only if filed by "separate motion to revise, " excluding all other possible separate motions that parties may file in superior court. Br. of Appellant at 10.
Furthermore, although the superior court heard Wasner's motions to revise and to change venue during a single hearing, the record is clear that the court kept the two motions separate. And it did not violate RCW 2.24.050 by considering matters outside the record when it reviewed and ruled on the motion to revise the commissioner's findings and conclusions. We hold that the superior court committed no error in the procedure it followed in ruling on these two motions.
B. Sanctions
Fellows next argues that the superior court erred in denying his motion for sanctions, which he sought against Wasner for bringing a "frivolous" motion to change venue. Br. of Appellant at 11. This argument fails for two reasons: First, Fellows does not show that the trial court abused its discretion in denying his sanctions motion; on the contrary, the record shows that the superior court granted Wasner's motion to change venue after carefully considering the required factors set out in RCW 26.27.261. Second, nothing in the record before us supports Fellows' argument that Wasner's motion for change of venue to Minnesota, where the child had been living for almost two years, was frivolous.
C. Editing Order
Fellows next argues that the superior court denied him procedural due process by editing the proposed venue order before entering it. The record, however, shows that the superior court orally informed Fellows of the terms of the correct order at the end of the venue-change hearing when it directed Wasner to file an action in Minnesota. The superior court's edits of the Wasner's proposed written order changing "Petitioner" to "Respondent" were, therefore, mere clerical corrections to conform it to the court's oral order, expressly allowed under CR 60(a).Furthermore, at the end of the hearing, the superior court not only informed Fellows about the substance of the order, but it also expressly asked him to stay to review the order before the court entered it. Fellows fails to show denial of due process.
CR 60(a) provides: "Clerical mistakes . . . may be corrected by the court." See also Shaw v. Des Moines, 109 Wn.App. 896, 901, 37 P.3d 1255 (2002) ("The test for distinguishing between 'judicial' and 'clerical' error is whether, based on the record, the judgment embodies the trial court's intention.").
II. Filing Fees
Finally, Fellows contends that, because the superior court waived his initial filing fees below, he is entitled to have his appellate fees waived also. This argument fails.
"[W]aiver of fees is a discretionary act within the inherent power of the court." Neal v. Wallace, 15 Wn.App. 506, 510, 550 P.2d 539 (1976). We review the superior court's denial of waiver for abuse of discretion. We find no such abuse here.
To allow waiver of fees in a civil action, at a minimum, the affidavit accompanying the motion must show "(1) . . . actual, not theoretical, indigency; (2) that but for such waiver a litigant would be unable to maintain the action; (3) that there are no alternative means available for procuring the fees; and (4) that plaintiff's claim is 'brought in good faith and with probable merit.'"Neal, 15 Wn.App. at 508-09 (emphasis added) (quoting Bowman v. Waldt, 9 Wn.App. 562, 571, 513 P.2d 559 (1973)); see also Housing Auth. of King County v. Saylors, 87 Wn.2d 732, 742-43, 557 P.2d 321 (1977) (waiver of civil appeal fees).
The superior court denied Fellows' request to waive filing fees for an appeal because, although his income was at or below 125% of the federal poverty level, "there [did] not appear to be a constitutional or statutory right to review at public expense" and "the appeal [did] not have probable merit." CP at 110. The record before us on appeal does not contain an affidavit from Fellows setting out the four Neal requirements for waiving appellate fees in a civil case. In contrast, the record negates the second and fourth factors: Because Fellows paid the appellate filing fee after the superior court denied his motion to waive it, he does not demonstrate "that there are no alternative means available for procuring the fees"; and the superior court specifically found that Fellows' appeal lacked probable merit. Neal, 15 Wn.App. at 508-09. We hold, therefore, that the superior court did not abuse its discretion in denying Fellows' motion to waive the appellate filing fee in this civil action.
III. Respondent's Request For Sanctions
Wasner asks this court to impose sanctions on Fellows for filing a frivolous appeal, which caused her to expend resources to respond. Under RAP 18.9, we
may order a party . . . who. . . files a frivolous appeal . . . to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court.An appeal is frivolous it presents no debatable issues upon which reasonably minds may differ. Olson v. City of Bellevue, 93 Wn.App. 154, 165, 968 P.2d 894 (1998), review denied, 137 Wn.2d 1034 (1999). "In determining whether an appeal is frivolous, we consider the record as a whole and resolve all doubt in favor of the appellant." Skinner v. Holgate, 141 Wn.App. 840, 858, 173 P.3d 300 (2007) (citing Streater v. White, 26 Wn.App. 430, 435, 613 P.2d 187 , review denied, 94 Wn.2d 1014 (1980)).
In this appeal, Fellows does not challenge the superior court's decision on the merits. Instead, for the first time on appeal, he challenges the superior court's jurisdiction to hear Wasner's motion to change venue in a case that he filed in that same court. This claim is blatantly frivolous. Fellows also challenges the superior court's (1) "failure" to address the matter of sanctions against Wasner for filing the venue motion, (2) refusal to waive appellate filing fees, and (3) making changes to the order directing Wasner to file an action in Minnesota. These claims are also frivolous. In granting Wasner's motion to change venue, the superior court impliedly rejected Fellows' allegation that Wasner's motion was frivolous and that he was entitled to sanctions. And as we have already noted, key factors in the superior court's denial of Fellows' request to waive the appeal filing fee in this civil case was that an appeal would be frivolous and that he did not meet the criteria for indigency. Nevertheless, Fellows eventually did pay the filing and pursued this meritless appeal, to which Wasner had to respond.
Even resolving all doubts, if any, in Fellows' favor, we hold that his appeal presents no debatable issues upon which reasonable minds may differ. Olson, 93 Wn.App. at 165. Because Fellows' appeal is, therefore, frivolous, sanctions are appropriate. RAP 18.9. Accordingly, we grant Wasner's request for sanctions in the amount of $100, which Fellows shall pay within 30 days of the date of this opinion through the clerk of this court.
In addition to receiving these sanctions, as the prevailing party Wasner is entitled to recover her appellate costs under RAP 14.2 and 14.3. We hereby direct Wasner to file a cost bill following the procedures in RAP 14.4.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, P.J., QUINN-BRINTNALL, J.