In Re The Marriage Of: Donette L. Venn F/k/a Zbikowski, Resp/x-app v. Mark J. Zbikowski, App/x-resp

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

In the Matter of the Marriage of ) No. 77891-9-1
)
DONETTE L. VENN, )
f/k/a ZBIKOWSKI, )
)
Respondent/Cross Appellant, )
)
and )
) UNPUBLISHED OPINION
MARK J. ZBIKOWSKI, )
) FILED: January 14, 2019
Appellant/Cross Respondent. )
)

VERELLEN, J. —An arbitrator does not exceed her authority when,
consistent with a dispute resolution provision of a parenting plan including the

parents' agreement to submit their parenting plan and child support disputes to

arbitration, the arbitrator clarifies when a parent planning an overnight trip with a

child must provide the other parent travel information, determines that tuition for

public preschool qualifies as a supplemental educational cost to be paid by the

father, and awards the mother a portion of her attorney fees. The superior court

should have confirmed the entire award and denied the father's motion to vacate.

The superior court commissioner's precise grounds for awarding the mother

a portion of her attorney fees incurred in superior court are not clear. And the

mother is now eligible for an award of fees incurred in the superior court as the
No. 77891-9-1/2

entirely prevailing party under RCW 7.04A.250(3). We remand to allow the mother

to reapply to the superior court to exercise its discretion under RCW 7.04A.250(3)

as to fees incurred by the mother in superior court.

We affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

FACTS

Donette Venn and Mark Zbikowski were married in 2007 and divorced in

2014. The dissolution of marriage included a final parenting plan and an order of

child support for their three young children. The final parenting plan included a

section on dispute resolution requiring that "[d]isputes between the parties,

including child support disputes, shall be submitted to mediation . . . . If mediation

does not result in an agreement, the mediator pursuant to RCW 7.04A will

arbitrate the issue."1

On February 28, 2017, the mother initiated the dispute resolution process

for the parenting plan and child support order. A May 2, 2017 mediation session

was suspended. The parties completed mediation on June 15, 2017, and the

issues remaining in dispute were submitted to arbitration. The arbitrator issued

her decision on September 20, 2017. The arbitrator clarified how soon before an

overnight trip the traveling parent is required to provide the travel information

1 Clerk's Papers(CP) at 667.

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No. 77891-9-1/3

required by the parenting plan.2 The arbitrator also concluded the father's agreed

obligation to pay supplemental educational costs extends to public preschool

tuition for the youngest child. And the arbitrator awarded the mother fees she

incurred for the suspended May 2 mediation.

The mother moved for an order confirming the arbitrator's decision, and the

father moved to vacate the arbitration decision in part. On December 4, 2017, the

superior court commissioner confirmed the arbitration decision in part but vacated

the arbitrator's supplemental educational costs ruling and the fee award. The

superior court commissioner awarded the mother part of her requested fees

incurred in superior court. The father appeals the superior court's partial

confirmation of the arbitrator's decision and partial award of fees. The mother

cross appeals the superior court's partial vacation of the arbitrator's decision and

failure to award all of her fees.

ANALYSIS

Standard of Review

Appellate review of an arbitrator's award is limited to the same standard

applicable in the court which confirmed, vacated, modified, or corrected that

award.3 Judicial review "is confined to the question whether any of the statutory

2 The parenting plan included a more detailed provision governing
international travel. The arbitrator's ruling was limited to the parenting plan
provision governing overnight domestic travel.
3 CUMMinCIS v. Budget Tank Removal & Envtl. Servs., LLC, 163 Wn. App.
379, 388, 260 P.3d 220 (2011).

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No. 77891-9-1/4

grounds for vacation exist." The party seeking to vacate the award bears the

burden of showing such grounds exist.5 "One of the statutory grounds for vacating

an award exists when the arbitrator has 'exceeded the arbitrator's powers." An

arbitrator exceeds her powers if the face of the award reveals an error such as

deciding issues not referred to arbitration or an error of law.7

The "facial legal error standard is a very narrow ground for vacating an

arbitral award."5 Our courts have sparingly applied facial legal error as a basis to

vacate.9 It does not extend to a potential legal error that depends on the

consideration of the specific evidence offered or to an indirect sufficiency of the

evidence challenge.1° Courts are not permitted to conduct a trial de novo when

reviewing the award; they "do not look to the merits of the case, and they do not

reexamine evidence."11 "The error should be recognizable from the language of

4 Id.
5 Id.
6 Id. (quoting RCW 7.04A.230(1)(d)).
7 Jensen v. Misner, 1 Wn. App. 2d 835, 850, 407 P.3d 1183(2017);
Salewski v. Pi!chuck Veterinary Hosp., Inc., P.S., 189 Wn. App. 898, 903-04, 359
P.3d 884 (2015); Boyd v. Davis, 127 Wn.2d 256, 263, 897 P.2d 1239(1995)("In
the present case, the face of the arbitral award alone does not exhibit an
erroneous rule of law or a mistaken application of law. Therefore, no support exists
for Petitioner's position that the arbitrator exceeded his power.").
8 Broom v. Morgan Stanley DW, Inc., 169 Wn.2d 231, 239, 236 P.3d 182
(2010).
9 Id.
19 See Cummings, 163 Wn. App. at 389-90.
11 Broom, 169 Wn.2d at 239.

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No. 77891-9-1/5

the award, as, for instance, where the arbitrator identifies a portion of the award as

punitive damages in a jurisdiction that does not allow punitive damages.'"12

Here, we review the superior court's decision whether to confirm or vacate

the arbitrator's award under RCW 7.04A based upon whether the arbitrator

exceeded her authority; the sole ground argued by both parties to the superior

court and in their briefing on appea1.13

An entirely different standard of review applies to the award of attorney fees

incurred in the superior court. "[W]e apply a two-part review to awards or denials

of attorney fees:(1) we review de novo whether there is a legal basis for awarding

attorney fees by statute. ... and (2) we review a discretionary decision to award or

deny attorney fees and the reasonableness of any attorney fee award for an abuse

of discretion."14

12 Cummings, 163 Wn. App. at 389 (quoting Federated Servs. Ins. Co. V.
Pers. Representative of Estate of Norberg, 101 Wn. App. 119, 123-24, 4 P.3d 844
(2000)). "Where a final award sets forth the arbitrator's reasoning along with the
actual dollar amounts awarded, any issue of law evident in the reasoning may also
be considered as part of the face of the award." Id.
13 The mother notes that neither party has advocated that the superior court
should have conducted a broader de novo review of an alternative dispute
decision and argues that, even under that standard, the mother would prevail.
Because the parents submitted their motions to confirm and vacate to the superior
court solely based solely on chapter 7.04A RCW(CP at 93, 247, 261, 275), and
because both advocate that standard in their briefing to this court, we limit our
review to the provisions of chapter 7.04A RCW governing confirmation or vacation
of an arbitrator's award.
14 Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).

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Clarification of When Travel Information Must Be Disclosed

The parenting plan contains a provision requiring the parents to disclose

certain travel information for an overnight domestic trip:

If either parent has plans to travel with the children outside of the
Seattle area for an overnight or longer, the other parent shall be
provided an itinerary and contact telephone number(s) where the
children may be reached while traveling. The itinerary will include
sufficient information to locate the children if the need arises
including but not limited to campground names, flight information,
hotels, and trains.(181

The parents submitted their dispute over the timeliness of notice to mediation

followed by arbitration. The arbitrator concluded:

The itinerary and contact telephone number(s) will be provided to the
non-traveling parent two (2) weeks before the travel but no later than
24 hours before departure if the plans are made less than two (2)
weeks before departure.C18]

The father argues that the arbitrator exceeded her authority by modifying rather

than merely clarifying the parenting plan.

A "clarification" of a parenting plan is merely a definition of the rights the

court has already given the parties.17 A court may clarify a parenting plan by

completely spelling out the parties' respective rights and obligations if the parties

cannot agree on the meaning of a particular provision.18 Permissible clarifications

15 CP at 172.
16 CP at 22.
17 In re Marriage of Holmes, 128 Wn. App. 727, 734-35, 117 P.3d 370
(2005)(quoting In re Marriaqe of Christel and Blanchard, 101 Wn. App. 13, 22,
1 P.3d 600 (2000)).
18 Christel, 101 Wn. App. at 22.

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No. 77891-9-1/7

include "explaining the provisions of the existing parenting plan" and "filling in

procedural details" of the existing plan.19 By contrast, a modification occurs when

a party's rights are either extended beyond or reduced from those originally

received.20

The father argues that the arbitrator's ruling reduced his rights to take his

children on spontaneous overnight trips. He contends his only obligation is to

disclose the required information before the trip actually begins.21

The parenting plan unequivocally requires the disclosure of travel

information for overnight domestic trips. The plan does not indicate when the

information is to be disclosed. Setting the time for the disclosure clarifies rather

than modifies the plan because it defines and fills in the procedural details of the

existing plan. Because the arbitrator merely clarified the parenting plan, the

arbitrator acted within her authority. The superior court properly confirmed this

portion of the arbitrator's award.

19 See id. at 23.
20 Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677(1969).
21 On this issue, the arbitrator made the following finding: "After considering
the submissions and arguments of the parties, this Arbitrator FINDS the parents
have an agreed shared residential schedule. Implicit in a shared residential
schedule is a commitment by both parents to open communication. Further, such
communication is in the best interest of the children. As an example, this
Arbitrator FINDS providing such information to the non-traveling parent when the
children are 12 minutes from taking off in an airplane is not within the acceptable
bounds of notice from one parent to another and heightens the level of conflict
between the parents which is not in the children's best interest. Further, such acts
border on bad faith insofar as a parent's co-parenting of the children." CP at 21-
22.

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No. 77891-9-1/8

Support Obligation for Supplemental Educational Costs

The child support order contains several provisions governing educational

costs:

1. The father shall pay 100 percent of agreed tutoring and other
supplement[al] educational costs

2. The father shall pay 100 percent of any agreed private school
tuition.122]

Although the father acknowledges he is obligated to pay 100 percent of private

preschool tuition and that he agreed to send his youngest son to a less expensive

public preschool, he balked at paying 100 percent of the less expensive public

preschool tuition. He argues the child support order lacks any express provision

that he pay more than his proportional share based on his scheduled residential

preschool days.

On the face of the award, the arbitrator noted the father agreed to a tutor

"which is a specific form of education supplementation," and therefore, "the phrase

'other supplement[al] educational costs' is clearly intended to mean he

alternatively pays for other supplemental education costs 'of a like-kind to

tutoring.'"23 The arbitrator determined that preschool is "a form of'other

supplemental education' because the goals and activities [of preschool] advance a

child's education and preparation for Kindergarten."24 In a "very close call,"25 the

22 CF at 183.
23 CF at 32.
24 CF at 34.
25 Report of Proceedings(RP)(Dec. 4, 2017) at 2.

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No. 77891-9-1/9

superior court commissioner concluded that both parents were obligated to pay

public preschool tuition in proportion to their income.

The parenting plan provides, "Disputes between the parties, including child

support disputes," shall be submitted to mediation and then to arbitration if

mediation is unsuccessful.26 First, the father argues this was a modification of the

child support order and an arbitrator has no authority to modify a child support

order. But parents may agree to submit a child support dispute, including a

modification, to arbitration.27

Second, the father argues there was no ambiguity in the child support order

and the arbitrator incorrectly construed the order. But his arguments include

references to background information such as the negotiation of the order by the

parties. Because we are limited to the face of the award, we do not consider the

background information argued by the father. And because "supplemental

educational costs" is a broad term that extends to variety of education expenses, it

was not an error of law for the arbitrator to conclude that public preschool tuition is

a supplemental education cost because, like tutoring, it helps the youngest son

prepare for kindergarten. Under the narrow standard of facial legal error, the

father does not establish that the arbitrator exceeded her authority. We reverse

the superior court ruling vacating the arbitrator's ruling on this issue.

26 CF at 175.
27 RCW 26.09.175(6)("Unless all parties stipulate to arbitration. . . ,a
petition for modification of an order of child support shall be heard by the court.").

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No. 77891-9-1/10

Award of Attorney Fees

The arbitration rules signed by the parties expressly recognize that "[t]he

Arbitrator shall have the authority to award fees and costs to either party."28 The

arbitrator awarded the mother $4,898 in fees and costs she unnecessarily incurred

to prepare for the suspended May 2 mediation. The superior court commissioner

vacated the award of attorney fees by the arbitrator, concluding that each parent

should bear their own attorney fees arising out of the suspended mediation

session.29

The arbitrator based her attorney fee award on RCW 26.09.140 and

common law intransigence. First, she quoted case law applying the

RCW 26.09.140 need and ability to pay standard. She expressly noted that based

on the father's average monthly gross income of $77,000 with no debt other than a

line of credit, he "has sufficient funds and financial resources" to pay his attorney

fees.3° The arbitrator also expressly noted that the mother has monthly net

income of $17,207 and expenses of $14,366, so "it will be more difficult for [her] to

pay off her attorney fees and costs [of $27,032]."31 But on the face of the award,

the arbitrator found the mother "is clearly wealthy and voluntarily underemployed.

The fact that [the father] has wealth is not a basis for an award of fees."32 To the

28 CP at 323.
29 Regarding the suspended mediation: "[T]o me it seems that the parties
should bear their own fees." RP (Dec. 4, 2017) at 5.
30 CP at 51.
31 Id.
32 CP at 49.

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No. 77891-9-1/11

extent that the mother argues the arbitrator properly awarded fees under

RCW 26.09.140, there was an error of law because of the finding that the mother

is "clearly wealthy." RCW 26.09.140 allows for consideration of "the parties'

relative ability to pay."33 But where both parents are wealthy and able to pay their

own fees without hardship, RCW 26.09.140 does not support an award of fees.34

It was an error of law for the arbitrator to award fees under RCW 26.09.140.

Second, the arbitrator quoted case law applying the intransigence standard,

including cases finding intransigence for making trial difficult, increasing legal

costs unnecessarily, and foot dragging. The arbitrator expressly noted that when

intransigence is found,"the financial resources of the party seeking attorney's fees

need not be considered and are irrelevant."35

While the arbitrator did not expressly recite that the father was intransigent,

she made findings consistent with intransigence:

[The mother]incurred fees unnecessarily on May 2, 2017 when [the
father] submitted unsigned submissions on Ms. Gaston's firm's
letterhead and she appeared with him but declined to enter a Notice
of Appearance without first consulting lawyers at her office. As a
result, the mediation was suspended until she resolved the issue and
decided whether she would file a Notice of Appearance or be present
during the mediation. . . .[The mother] was prepared to proceed on

33 Leslie v. Verhev, 90 Wn. App. 796, 807, 954 P.2d 330 (1998).
34 See Matter of Marriage of Kaplan, 4 Wn. App. 2d 466, 488, 421 P.3d
1046 (2018)(fees under RCW 26.09.140 not warranted where "[e]ach party is
financially able to pay his or her attorney fees and neither would be under a critical
hardship to do so"), review denied, 191 Wn.2d 1025 (2018); In re Marriage of
Rostrom, 184 Wn. App. 744, 764, 339 P.3d 185(2014)("superior ability to pay'
alone does not address the requirements of RCW 26.09.140")
35OP at 50 (citing In re Marriage of Crosetto, 82 Wn. App. 545, 918 P.2d
954 (1996)).

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No. 77891-9-1/12

May 2nd. As a result of the suspension of the proceedings on
May 2nd and the delay in not returning until June 15,[the mother]
incurred unnecessary attorney fees and costs.(38]

A finding of intransigence does not require any particular words so long as the

record clearly supports the existence of intransigence.37 Here, when the father

submitted unsigned materials on Perkins Coie letterhead and he was

accompanied only by Gaston, it naturally led to the question whether Gaston was

appearing as attorney for the father. The resulting suspension of the mediation to

allow Gaston time to consult with attorneys in her office could be viewed as an

unnecessary delay. Under the narrow standard of facial legal error, the father

does not establish that the arbitrator exceeded her authority in awarding fees due

to intransigence.38 We reverse the superior court ruling vacating the arbitrator's

ruling on this issue.

38 CP at 51 (emphasis added).
37 Crosetto, 82 Wn. App. 545, 564, 918 P.2d 954(1996)("Although the trial
court did not make a finding of intransigence. . . the record discloses a continual
pattern of obstruction" that constitutes intransigence.)
38 The father argues that when the arbitrator limited the award of fees to
those unnecessarily incurred by the mother for the suspended May 2 mediation,
she made an error of law by indicating that Gaston should have known there
would be no confidentiality under ER 408 if she was present during the mediation
but did not appear as an attorney of record. Even though the arbitrator's reference
to ER 408 and the impact on confidentiality is not legally accurate, the material
portion of the arbitrator's analysis was the father's submission of unsigned
materials on Perkins Coie letterhead when no attorney from that firm had
appeared on behalf of him. Gaston, an attorney at Perkins Coie who was not a
party to the mediation, accompanied him to the May 2 mediation. Gaston wanted
additional time to consult with attorneys in her firm. Under the narrow facial legal
error standard, the reference to ER 408 was not critical to the conclusion that the
mother unnecessarily incurred fees because of the suspended session.

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No. 77891-9-1/13

The superior court commissioner's rationale for awarding some of the

mother's fees incurred in superior court is a bit jumbled. The commissioner

confirmed the arbitrator's decision in part and vacated it in part. As to fees

incurred by the mother in superior court, the commissioner awarded the mother

$4,746 in attorney fees "for having to bring this motion [to confirm the arbitrator's

decision]," and $2,150.00 in attorney fees "for having to respond to Respondent's

motion [to vacate the arbitrator's decision in part]," for a total award of $6,896.39

But it is not clear whether the commissioner blended two different legal theories:

And I am essentially doing that on-1 think that it is quite clear that
[the father] has—he does have the ability to pay. He has not
prevailed on all issues, but he has prevailed on two out of three
issues.(40]

The father's ability to pay does not sustain an award under ROW 26.09.140

because the mother, who remains wealthy, makes no showing of any hardship

from paying her own attorney fees. As to who was the prevailing party for

purposes of RCW 7.04A.250(3), that is an entirely separate legal theory unrelated

to the father's ability to pay. More importantly, we have concluded that the

superior court should have confirmed the entire award and denied the father's

entire motion to vacate.

39 CP at 271.
40 RP (Dec. 4, 2017) at 6. To determine the amount of fees to award the
mother for responding to the father's motion to vacate in part, the superior court
took the total amount of fees the mother incurred in responding, $6,440, divided by
3, making $2,146.66, and rounded up to $2,150. Neither the superior court's
written order nor its oral ruling reflect that intransigence was considered in
awarding fees, an alternate theory offered by the mother.

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No. 77891-9-1/14

Under these circumstances, we vacate the superior court's partial award of

attorney fees incurred and remand to allow the mother to reapply for a possible

award of attorney fees under RCW 7.04A.250(3) as the prevailing party on the

entire motion to vacate and her entire motion to confirm. We note that

RCW 7.04A.250(3) permits but does not compel such an award; the court "may"

add attorney fees to a judgment confirming an arbitrator's award.

Finally, the father seeks an award of his attorney fees on appeal to this

court as the prevailing party under RCW 7.04A.250(3). But he is not the prevailing

party. The mother requests attorney fees incurred on appeal to this court based

on RCW 26.09.140, but she does not establish any hardship in paying her own

fees. Because she's the prevailing party under RCW 7.04A.250, we award the

mother her attorney fees on appeal.

We affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

WE CONCUR:

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14