James Alan Clark v. Wendy Kristine Clark

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Marriage of
No. 79424-8-I
JAMES ALAN CLARK,
DIVISION ONE
Appellant,
UNPUBLISHED OPINION
v.

WENDY KRISTINE CLARK,

Respondent. FILED: January 13, 2020

ANDRUS, J. — The trial court denied James Clark’s petition to modify his

child support obligation based on a reduction of employment hours and income.

His appeal is largely focused on arguments that he failed to preserve for appeal.

To the extent he challenges the merits of the court’s decision on his petition to

modify, we conclude that the trial court did not abuse its discretion and affirm.

FACTS

James and Wendy Clark dissolved their marriage in 2011.1 They have

two children, who were 6 and 8 years old at the time of the dissolution. The trial

court entered agreed orders that equally allocated residential time with the

children and apportioned the child support obligation according to the standard

1 Some of the factual background is derived from this court’s recent unpublished decision
resolving James’s appeal of a 2017 order entered earlier in this proceeding. ~
clarkv. clark, No. 77253-8-I (Wash. Ct. App. June 11, 2018) (unpublished)
http://www.courts.wa.gov/opinions/pdf/772538.pdf. As in our prior opinion, because the parties
share the same last name, we refer to them by first name for clarity.
No. 79424-8-1/2

child support calculation based on each parent’s proportionate share of the

combined income.2

Approximately one year after the final orders were entered, James began

multiple attempts to reduce his child support obligation, seeking to deviate from

the standard child support calculation based on the substantial amount of time

the children reside in his household. See RCW 26.19.075(1)(d).3 The court

rejected these requests.

In 2014, after the court had denied two petitions to reduce support and

awarded attorney fees to Wendy in connection with one of those requests,

James filed a petition to modify support. He again requested a deviation based

on the shared residential schedule. A court commissioner denied the motion,

observing that a deviation for residential credit is discretionary and generally not

warranted where there is a significant disparity in the parents’ income. At the

hearing on James’s motion, the commissioner explained:

The bigger the differential in income, the less likely you are to get a
residential credit, and the reason for that is because the household
that has 50 percent of the time with the lower income is at an
economic disadvantage in maintaining the life that these kids
have.

2 The record on appeal does not include the final dissolution and child support orders
entered in 2011, but James does not dispute that he agreed to an amount of child support that did
not deviate from the standard calculation.
~ RCW26.19.075(1)(d) provides, in pertinent part:

The court may deviate from the standard calculation if the child spends a
significant amount of time with the parent who is obligated to make a support transfer
payment. The court may not deviate on that basis if the deviation will result in insufficient
funds in the household receiving the support to meet the basic needs of the child or if the
child is receiving temporary assistance for needy families. . .

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No. 79424-8-113

The commissioner denied Wendy’s fee request, but cautioned James that she

would “absolutely” award fees if he filed another motion raising the same

argument.

In 2017, James filed a petition to modify the parenting plan. This time, he

proposed a slight increase in his residential time with the children, along with a

reduction of child support. James described his proposal as a “college savings

plan,” which would allow him to set aside over $1,000 per month for future

postsecondary education expenses. While urging the court to dismiss James’s

petition, Wendy also sought an adjustment of child support, because it had been

two years since entry of the previous order of support and one of the children had

moved into a new age bracket. ~ RCW 26.09.170(6)(b) (allowing for

adjustment after one year if a child is no longer in the age category upon which

the support obligation is based).

A commissioner denied James’s petition, describing it as a “cynical” and

transparent attempt to further his own financial interests. The commissioner

granted Wendy’s requested adjustment and awarded her attorney fees. The

superior court denied James’s motion for revision and awarded additional

attorney fees to Wendy. This court upheld the superior court’s order on appeal.

See Clark v. Clark, No. 77253-8-I (Wash. Ct. App. June 11, 2018) (unpublished)

http ://www.courts.wa.gov/opinions/pdf/772538 pdf.
.

The 2017 child support order required James to make a transfer payment

of $2,054 to Wendy based on his 72 percent proportional share of the combined

income. The order states:

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No. 79424-8-1/4

Father has requested [a] residential deviation which has been
denied multiple times by the court due to disparity in income
between the parties. Downward deviation for post-secondary
support is untimely due to [the] age of the children.

While James’s appeal was pending, he refused to pay the full amount of

child support. As a result, on June 26, 2018, a court commissioner found James

in contempt for failing to comply with the July 2017 support order. The court

ordered him to pay the child support arrearage as well as attorney fees and costs

of more than $2,500 to Wendy.

On August 1, 2018, James filed the petition at issue in this appeal,

seeking to modify child support based on an alleged substantial change of

circumstances with respect to his employment and income. ~

RCW 26.09.170(5)(a) (“[a] party to an order of child support may petition for a

modification based upon a showing of substantially changed circumstances at

any time”). James also asserted that the current support order had been in place

for at least a year and created a “severe economic hardship.” See RCW

26.09.170(6)(a) (support order may be modified if it has been in place for at least

a year without a showing of substantially changed circumstances if the order

creates a “severe economic hardship.”).

James explained that he had been involuntarily laid off by his employer,

Northrop Grumman Corporation (Northrop), on July 26, 2018, and hired by a

different company, Engineering Services Network (ESN), the following day.

However, James stated that while he was reemployed at approximately the same

hourly rate of pay, his new position at ESN was part-time. Consequently, he

claimed his annual salary was reduced to approximately half of his 2017 income.

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No. 79424-8-1/5

James stated that his part-time schedule would allow him to restart a

consulting business he had operated in the past. While he predicted that it would

take approximately a year for the new business to become profitable, James

opined that developing his own business would ultimately increase his earning

potential and said he could “picture roles in the company” for his children in the

future. James argued that, as a result of his reduced income, there was no

longer a substantial disparity between his income and Wendy’s. He believed that

it was “long past time” for the court to award a residential credit under

RCW26.19.075(1)(d) in light of the parties’ equal residential time. Based on his

projected new income, James claimed that his monthly child support obligation

should be reduced to $1,059.

Two months later, James sought a temporary order eliminating his child

support transfer payment. He also reiterated his challenges to the 2017 child

support order that had been recently affirmed on appeal, including his claims that

the existing child support order was detrimental to the children because it

prevented him from saving for their future educational expenses and that he was

entitled to a residential credit deviation.

Wendy opposed modification, arguing that James’s decision to accept

part-time employment was not a basis to modify the 2017 order. Wendy

explained that Northrop, James’s employer for the preceding 13 years,

historically issued layoff notices before its defense contract was renewed and

then promptly rehired its employees after renewal. Wendy pointed out that

James did not say whether he had been offered full-time employment and

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No. 79424-8-1/6

observed that his latest motion represented his sixth attempt since 2011 to

reduce child support.

James denied that he was voluntarily underemployed. He argued Wendy

had no personal knowledge of the negotiations surrounding his 2018 layoff and

rehiring, but at the same time, he provided no information to verify that he was

not offered reemployment with Northrop or that he was not offered full-time

employment at any rate of pay.

At the October 2018 hearing on his motion, James argued that the transfer

payment required by the 2017 support order was neither sustainable nor

equitable in light of his reduced income. But instead of elaborating on his

employment options, James focused on the previously-litigated issue of a

deviation based on residential credit. James said that his purpose, “[f]irst and

foremost,” was to obtain a residential credit deviation. James claimed that any

payment above $1,440, which represented fifty percent of the total child support

obligation, was “backdoor[J” maintenance. James also informed the

commissioner that he had obtained all the credentials to become a “digital

forensics expert witness,” and that he expected to substantially increase his

income “within the next year.”

The commissioner denied the motion to modify, concluding there was no

substantial change in circumstances to warrant modification of child support.

The commissioner noted that James’s requests for a discretionary deviation

based on residential credit had been previously denied based on a significant

disparity in the parties’ incomes and that, since he planned to work full-time and

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No. 79424-8-1/7

to expand his salary base in the near future, the disparity was not eliminated.

The commissioner denied reconsideration and ordered James to pay Wendy

approximately $8,000 in attorney fees.

James filed a motion to revise the commissioner’s ruling. Wendy then

filed a motion seeking to declare James a vexatious litigant and to require that he

post a bond before filing further pleadings seeking affirmative relief. She also

requested attorney fees incurred in responding to James’s motion to revise.

Following a hearing on both motions, the trial court denied James’s motion

to revise, based on a de novo review of the record before the commissioner, but

granted Wendy’s motion to declare James to be a vexatious litigant. The court

entered an order placing limitations on James’s ability, for a year, to file petitions

or motions pertaining to child support. The court denied Wendy’s request for

attorney fees.

James appeals from the order denying revision and the order granting

Wendy’s motion to prevent vexatious litigation. -

ANALYSIS

A. Constitutional Arguments

James primarily argues on appeal that he is entitled to a deviation from

the standard calculation child support obligation. He claims that the failure to

apply a deviation in a case of equally allocated residential time violates several

constitutional principles, including substantive and procedural due process and

equal protection. He also challenges the constitutionality of the statutory

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No. 79424-8-1/8

provision governing residential credit deviations, RCW 26.19.075(1)(d), insofar

as it does not require deviations in cases involving a 50/50 residential schedule.

But James did not argue below that a residential credit deviation was

constitutionally required and did not challenge the constitutionality of

RCW26.19.075(1)(d). Under RAP 2.5(a), we generally do not entertain issues

not raised in the trial court in order to encourage the efficient use of judicial

resources. Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 166 Wn. App. 683,

695, 271 P.3d 925 (2012).

RAP 2.5(a)(3) provides an exception to this rule. To determine whether to

consider an unpreserved error under RAP 2.5(a)(3), we inquire whether (1) the

error is truly of a constitutional magnitude and (2) whether it is manifest. An error

is manifest when the asserted error has practical and identifiable consequences

in the trial court. Aventis Pharmaceutical, Inc. v. State, 5 Wn. App. 2d 637, 650,

428 P.3d 389 (2018). Manifest error must be “obvious on the record,” and

“unmistakable, evident, or indisputable.” State v. O’Hara, 167 Wn.2d 91, 100,

217 P.3d 756 (2009); State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

James does not allege, much less establish, manifest constitutional error.

His contention that RCW 26.19.075(1)(d) is unconstitutional is unsupported and

conclusory. He provides no cogent argument or persuasive authority that

supports his position that child support allocated in accordance with each

parent’s proportionate share of the combined income is not narrowly tailored and

does not advance a compelling state interest. See In re Custody of Smith,

137 Wn.2d 1, 14-15, 969 P.2d 21(1998) (parental autonomy is a fundamental

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No. 79424-8-1/9

liberty interest protected by the Fourteenth Amendment upon which the State

may not intrude without a compelling interest and narrow tailoring). Rather than

addressing the criteria of RAP 2.5(a)(3), James simply explains that he failed to

raise the constitutional issues below because “due process arguments

concerning errors of law belong in front of the appellate court.” Although James

raises numerous and extensive constitutional arguments related to a deviation

based on the shared residential schedule, he fails to make a plausible showing

that the alleged error is manifest. We therefore decline to address James’s

constitutional arguments.

B. Substantial Change in Circumstances

James argues the court below erred in denying his request to modify child

support based on his alleged substantial change of circumstances. Washington

courts have statutory and equitable powers to modify support orders.

RCW26.09.175; Pip~jins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105

(1988). As a general rule, courts must find a substantial change of

circumstances before modifying a support order. RCW 26.09.170(5); Pi~ins,

110 Wn.2d 475.

“On a revision motion, a trial court reviews a commissioner’s ruling de
novo based on the evidence and issues presented to the commissioner.” In re

Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). “When an

appeal is taken from an order denying revision of a court commissioner’s

decision, we review the superior court’s decision, not the commissioner’s.”

Williams, 156 Wn. App. at 27. We review such an order for manifest abuse of

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No. 79424-8-1/10

discretion. In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399

(2000). A trial court abuses its discretion if its decision is manifestly

unreasonable, or is based on untenable grounds or an erroneous view of the law.

In re Marriage of Scanlon, 109 Wn. App. 167, 174-75, 34 P.3d 877 (2001).

James contends that the court “ignored” his changed circumstances and

reduced income. He also claims that the court failed to appreciate his need to

“prioritize” the children by working less than full-time in order to fulfill his

substantial caretaking responsibilities. But the denial of James’s motion does

not, in and of itself, suggest that the court failed to consider his new

circumstances. The record supports the conclusion that James was likely to

experience only a temporary reduction in income and that he had no intention of

relying solely on part-time income from ESN. According to James’s financial

documents, his reported expenses, excluding child support, significantly

exceeded his new income from ESN.4 James conceded that part-time

employment was “not a long term option” for him. He admitted it would be

appropriate to credit him immediately with additional annual earnings generated

by his new business of between $18,000 and $30,000. The court had a basis in

the record for rejecting James’s argument that his employment status would lead

to a significant reduction in his income.

James also did not establish that his salary reduction was unavoidable.

He did not describe any specific efforts to secure full-time employment and did

not specifically say whether he was offered full-time employment, or what, if any,

~ According to James’s financial declaration submitted in August 2018 in conjunction with
his petition to modify support, at his new monthly income, his household would operate at a
monthly deficit of approximately $5,000.

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No. 79424-8-I/il

offer his previous employer made, Instead, he vaguely asserted that the

“layoff/rehire process can be brutal,” that managers he previously reported to had

left, that his “program” was “in flux,” and that the “overall workload” was reduced.

He provided very few details and nothing to substantiate his claim that, by

accepting part-time hours, he had “saved his job.”

James also asserted below that he accepted reduced hours in order to

meet the needs of his teenaged children. This assertion, however, is arguably

inconsistent with his historical ability to work full-time and manage his parenting

responsibilities and his contention that he needs the additional time to develop

his own business. The record shows that the children have resided with James

50 percent of the time since 2011, and he apparently worked full-time throughout

that 7-year period. And his stated intent was to devote his additional available

hours, not to his children, but to developing a business. The court did not

manifestly abuse its discretion in finding James’s arguments to be unconvincing.

Because the court rejected James’s contention that there has been a substantial

change in circumstances, it did not abuse its discretion in rejecting his request for

a residential credit.

James cites In re Marriage of Payne, 82 Wn. App. 147, 916 P.2d 968

(1996), to argue that the court abused its discretion because his child support

obligation is based on prior, not current, earnings. His reliance on Payne is

misplaced. The father in Payne earned approximately $600 less per month after

he moved to Seattle to be closer to his daughter following the mother’s

relocation. Payne, 82 Wn. App. at 151. We concluded the trial court did not err

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No. 79424-8-1/12

in calculating the father’s child support obligation based on his projected future

income in Seattle, rather than his prior earnings, because to do otherwise would

“unfairly penalize” him for moving. kJ. In those circumstances, we deemed the

father’s slightly higher income from a previous position to be irrelevant. Payne is

distinguishable because, unlike the case here, the change in income was not

associated with probable voluntary reduced work hours, but a change in location

and employer due to the other parent’s relocation. ~ RCW 26.09.170(5)(b)

(“An obligor’s voluntary unemployment or voluntary underemployment, by itself,

is not a substantial change of circumstances.”)

James also cites Schumacher for the position that full-time employment

need not always amount to 40 hours per week. But unlike the father in that case,

James does not argue, here or below, that less than 40 hours should be

considered full-time employment, in view of his work history, education, age, and

other relevant factors. See Schumacher, 100 Wn. App. at 215.

Based on the record here, the trial court did not abuse its discretion in

denying James’s petition to modify the child support order.

C. Vexatious Liticiation Order

James also challenges the court’s order placing temporary limitations on

his ability to challenge the order of child support.

“[A] court may, in its discretion, place reasonable restrictions on any

litigant who abuses the judicial process.” See In re Marriacie of Giordano,

57 Wn. App. 74, 78, 787 P.2d 51(1990). Here, the court found that James had

“engaged in a pattern of abusive litigation tactics that constitute vexatious

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No. 79424-8-1/13

litigation regarding child support, particularly the issue of a residential credit.”

The court noted that James’s “comments at oral argument support this finding.”5

The court determined that it was “appropriate and necessary” to place restrictions

on James’s ability to file future motions pertaining to child support. Specifically,

the order prohibits James from filing any motions regarding child support within a

year of the court’s December 11, 2018 order unless he is represented by a

licensed attorney, or unless he either (1) posts a $10,000 bond in the superior

court registry prior to filing a petition or motion, or (2) obtains prior approval of a

court commissioner before filing a new petition or motion.6

James does not challenge the finding that he engaged in “abusive

litigation tactics that constitute vexatious litigation,” or otherwise challenge the

sufficiency of the court’s findings. The only argument he raises with respect to

the order is that he cannot be deemed a vexatious litigant because he complied

with statutory requirements as to the timing of his June 2017 and August 2018

petitions. .~ RCW 26.09.170(6), (7). But James provides no authority or

reasoned argument to support his position. As a general matter, we decline to

address arguments that are unsupported by citation to authority or cogent

argument. ~ RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 809, 828 P.2d 549 (1992).

James does not challenge any of the specific restrictions or contend that

the injunction was overly broad. Yurtis v. Phiprs, 143 Wn. App. 680, 693,

~ The hearing on the motions was apparently not transcribed and a report of the
proceeding is not included in the record on appeal.
~ In these proceedings involving his 2018 petition, James has represented himself pro se,
but it appears that he was represented by counsel earlier in the litigation.

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No. 79424-8-1/14

181 P.3d 849 (2008) (courts must be careful not to impose overly comprehensive

injunctions that restrict litigation). And he fails to mention critical facts about the

scope of the order. The order was not a moratorium and set forth three separate

means by which James could seek relief from child support prior to expiration of

the order. .~ Giordano, 57 Wn. App. at 78 (no abuse of discretion where trial

court’s order restricting ability to file motions did not amount to a “total denial of

access” to the court). James fails to establish that the court abused its

discretion.

D. Attorney Fees

Wendy requests attorney fees on appeal, citing RAP 18.1,

RCW26.09.140, and RAP 18.9 based on her need and James’s ability to pay,

principles of intransigence, and a frivolous appeal.

This court has the discretion to award attorney fees on appeal under

RAP 18.1(a) if authorized by applicable law. RCW 26.09.140 allows the appellate

court, in its discretion, and based on consideration of the “financial resources” of

both parties, to order a party to pay the attorney fees of the other party in cases

governed by chapter 26.09 RCW. The court may also award fees based on

conduct that may be characterized as “foot-dragging” or “obstructionist.”

MacKenzie v. Barthol, 142 Wn. App. 235, 242, 173 P.3d 980 (2007); Eide v.

Eide, I Wn. App. 440, 445, 462 P.2d 562 (1969). And under RAP 18.9, the

appellate court may impose fees against a party who files a frivolous appeal. “An

appeal is frivolous if the appellate court is convinced that the appeal presents no

debatable issues upon which reasonable minds could differ and is so lacking in

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No. 79424-8-1/15

merit that there is no possibility of reversal.” In re Marriacie of Foley, 84 Wn. App.

839, 847, 930 P.2d 929 (1997).

We conclude that attorney fees are warranted under RAP 18.9 because

James’s appeal lacks merit. He largely focused on issues not properly before us,

did not assign error to any of the key factual findings, failed to brief in any

meaningful way the basis for reversing the finding that he is a vexatious litigant,

and presented no debatable issues for review. We therefore grant Wendy’s

request for attorney fees and costs under RAP 18.9, subject to her compliance

with RAP 18.1.

Affirmed.

WE CONCUR:

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