### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the marriage of: No. 791 87-7-I JOSEFIN KANNIN, DIVISION ONE

Respondent, UNPUBLISHED OPINION and JOHN KANNIN, FILED: November25, 2019

Appellant. ANDRUS, J.

—John Kannin appeals a superiorcourt orderenforcing a child support order and awarding attorney fees to his ex-wife, Josefin Kannin. John1 challenges the court’s findings that he violated the child support order and was intransigent. He also contends the court improperly excluded an untimely filed declaration and violated his right to due process and to ajury trial. We conclude that none ofJohn’s claims have merit and affirm the superior court’s order. FACTS John and Josefin filed for divorce in 2014. On June 22, 2015, the parties entered into a stipulated agreement underCR 2A (the “Agreement”) “as afull and complete settlement ofthis dissolution action.” The Agreement provided for the

Becausethe parties share the same last name, we refertothem bytheirfirst names.No. 79187-7-1/2

distribution of property and support for the couple’s two children, J.K. and C.K. The Agreement established, based on the couple’s income, that John was responsible for69 percent ofthe basic child support obligation and Josefin forthe remaining 31 percent. The Agreement provided that, in addition to the basic child support obligation, John would pay Josefin $199 each month for the children’s extra-curricularactivities. The parties agree that Mr. Kannin will pay an additional $199 on the first of each month to Ms. Kannin beginning June 1, 2015, to cover the costofcamps and extra-curricularactivitiesforthe children. This payment may be modified by mutual agreementtwelve months after signing this Agreement. This payment will be made to Ms. Kannin on the first ofeach month. John alsoagreed thathewould payJosefin $767 in outstanding child supportowed under the temporary order. Finally, the Agreement outlined the couple’s responsibilities for the children’s health insurance and uninsured medical expenses. 1. Health Insurance. Mr. Kannin agrees to continue to pay for the children’s health insurance. If Ms. Kannin secures full-time employmentatorabove her imputed income salary level, the parties agreeto each paythe costofthe health insurance not paid forby her employer proportionate to their incomes on the Child Support Worksheet (69/31). If Ms. Kannin acquires a job where health insurance fordependent children is covered in full, Mr. Kannin does not have to pay for health insurance. Should Ms. Kannin lose her job, Mr. Kannin will assume full payment of health insurance forthe children until such time as Ms. Kannin secures full-time employment again. If Mr. Kannin loses hisjob, the health insurance will be paid by Ms. Kannin. 2. Uninsured Medical Expenses shall be paid for by the parties proportionate to their incomes as perthe Child SupportWorksheets. If Ms. Kannin is unemployed or employed part-time, such expenses will be paid byJohn.

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John and Josefin agreed in writing that the Agreement “stands alone and, upon execution, is binding as a contract and enforceable in court.” They also agreed that the Agreement “will be incorporated into final documents to be filed with the courtto finalize the case.” On the same date the parties signed the Agreement, they filed an agreed child supportorder. Thefinal ordermemorialized the $199 activitypayment. Italso provided as follows: For any extracurricular activities not covered under the general expenses, division of paymentwill be based upon agreement ofthe parties orfurther orderofthe court. The paying parent shall furnish the other parent with copies of documentation for the costs and his or her payment (whether by invoice, copy ofcheck, orotherwise) within thirty (30) calendardays ofthe expense being incurred. The otherparent shall reimburse the paying parent within fifteen (15) calendar days of receipt of such documentation. The final order required that John pay the children’s health insurance premiums. It also specified that any uninsured medical expenses, including orthodontic treatment, shall be paid by the parties in the same proportion as the basic child support obligation. Atthe time ofthe entry ofthe child support order, Josefin was unemployed. Although the order required John to purchase health insurance, Josefin chose to provide it because she was eligible to obtain Medicaid coverage forthe children. J.K. began receiving orthodontictreatment, which was covered by Medicaid. Once Josefin became employed, she was notified that the children would
no longer be eligible for Medicaid. On January 31, 2018, she told John that he

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would need to purchase health insurance as required by the child support order. John did not do so. Accordingly, Josefin enrolled the children in her employer’s health insurance plan on March 12, 2018. Her employer’s plan did not cover orthodontic treatment. Josefin contacted John and requested that he contribute his proportionate share ofthe $193.89 monthly premiums. On April 11, 2018, J.K.’s orthodontist informed John and Josefin that they would be responsibleforthe costoforthodontictreatment nowthat itwas no longer covered byJ.K.’s health insurance. The record contains a patient ledgerfrom the orthodontist showing a balance of$3749.28 incurred between April 11 and July 1, 2018. John told the orthodontistthat he refused to pay outofpocketforany ofthe treatment. On June 1, 2018 John told Josefin he would agree to pay only 50 percent ofthe costforthe monthly premiums and J.K.’s orthodontictreatment. He subsequentlywrote Josefin a checkfor$578 as his portion ofthe children’s health insurance premiums.2 On July 14, 2018, John sent Josefin an e-mail informing her he had re-enrolled the children in Medicaid effective July 1, 2018. OnAugust3, 2018, Josefin filed a motion toenforcethe child supportorder.3 Josefin alleged that John stopped making the $199 monthly payment in August 2015. She also alleged that John had not paid the outstanding child support balance, the children’s health insurance premiums, or his share ofJ.K.’s uninsured orthodonticexpenses. In response, John argued that he should not be required to

2 Thejudgment credited John with this amount.

~ Josefin entitled her motion Motion to Enforce CR 2A Agreement And Child Support Order.” But it is clear that Josefin’s motion is a post-decree motion to enforce a child support obligation pursuantto chapter RCW26.18, ratherthan a motion to enforce a CR 2A agreement. 4No. 79187-7-1/5

pay Josefin forthe children’s activities because he chose to pay forthe activities directly himself. He submitted a declaration and receipts showing that he had paid for his daughter’s horseback riding lessons and his son’s gym membership. A hearing was held on October 5, 2018 before a superior court commissioner. Atthe hearing, John provided the courtwith a second declaration outlining additional amounts he had spent on the children’s activities. Josefin objected to the declaration as untimely, and the court sustained the objection. John moved fora continuance, which the court denied. The courtgranted Josefin’s motion and entered ajudgment againstJohn in the amount of $11,704.93. This comprised $767 in outstanding child support, $7,761 forthe monthly activityfees, $544.93 forJohn’s proportionate share ofthe children’s health insurance premiums, and $2,632 for John’s proportionate share ofJ.K.’s orthodontictreatment and prescriptions. The court also awarded Josefin $2500 in attorney fees and costs due to John’s intransigence. The court denied John’s motion for reconsideration. John appeals. DISCUSSION John contendsthatthe courterred in enforcing the monthly paymentforthe children’s extracurricular activities. He argues that “[w]hen read as a whole” the language oftheAgreement simply required him to “contribute $199 to activityfees forthe children,” and that he did so by paying the activity providers directly. We rejectthis claim becausethe child supportorder, which adoptsthe language ofthe Agreement, unambiguously required John to make the monthly payment to Josefin. It explicitly states that John must “pay an additional $199 on the first of
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each month to Ms. Kannin beginning June 1, 2015.” The paymentcan be modified only by mutual agreement, and John does not establish the existence ofany such agreement. Furthermore, the child support order provides that John may only unilaterallypayfor(and seek reimbursementfor) extracurricularactivities in excess ofthe $199 monthly amount. We decline John’s invitation to venture beyond the plain language ofthe order and find ambiguitywhere none exists. The court did not err in granting Josefin’s motion to enforce this provision of the child support order. John next contends that the court erred in refusing to consider his second declaration without considering the factors set forth in Burnet v. Srokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). Burnet held that a court must consider certain factors on the record before choosing one of the harsher remedies allowable underCR 37(b) forviolation ofa discovery order. Burnet, 131 Wn.2d at494. These factors include: (1) whetherthe untimelinesswas willful, (2) whetherthe otherpartywould suffersubstantial prejudice because ofthe violation, and (3) whethera lessersanction would suffice. Burnet, 131 Wn.2d at 494. John correctly notes that a superior court must analyze the Burnet factors before excluding untimely evidence in response to summaryjudgment. But John provides no legal authority or analysis in support of his claim that Burnet applies at a post-decree motion to enforce a child support order. See DeHeerv. Seattle Post-Intelliqencer, 60Wn.2d 122, 126, 372 P.2d 193 (1962) (‘Where no authorities
are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, afterdiligent search, has found none.”).
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Moreover, even ifJohn had establishedthatthe courterred, a lackofBurnet findings is harmless ifthe excluded evidence is irrelevant, cumulative, orotherwise inadmissible. See Jones v City of Seattle, 179 Wn.2d 322, 356-57, 314 P.3d 380 (2013). The evidence John wished to provide at the hearing consisted only of additional receiptsforhis children’svarious extracurricularactivities. Butthe court already had evidence before it showing that John paid for some of his children’s activities. None ofthis evidence was relevant because, as discussed above, the child support order clearly requires John to pay Josefin $199 each month so that she could pay for the children’s activities. John’s untimely declaration was both cumulative and irrelevant. John argues that the court erred in failing to consider his defense of equitable estoppel with regard to the monthly activity fee. Because John did not raise this issue before the superior court, he has failed to preserve this argument for review. See RAP 2.5(a). John next maintains thatthe superior court erred in finding that he failed to pay his proportionate share ofJ.K.’s orthodontictreatment as required bythe child support order. He contends that health insurance covered the treatment, and the orderthus unjustly enriches Josefin. But “[t}he party challenging a finding offact bears the burden of demonstrating the finding is not supported by substantial evidence.” Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993). John fails to meet this burden. The record shows that $3749.28 of J.K.’s treatment expenses were not covered by health insurance. John points to no evidence contradicting this finding. Though he argued below
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that Medicaid has a ‘look back” period that would “likely” pay for any expenses during the period between March and Julywhen the children were uninsured, John offered no evidence in support ofthis claim. Substantial evidence in the form of the patient ledgersupported the superior court’s finding.4 John argues that the superior court erred when it denied his request to impose CR 11 sanctions against Josefin.5 He contends that Josefin’s claim regarding the children’s health insurance premiums was frivolous and not grounded in fact. Atrial court may award fees under CR 11 against an attorney ora partyfor filing a pleading that is not grounded in fact orwarranted by law or is filed in bad faith foran improper purpose. LocThien Truong v. Allstate Pror. & Cas. Ins. Co., 151 Wn. App. 195, 207, 211 P.3d 430 (2009). Sanctions should be imposed “only when it is patently clear that a claim has absolutely no chance of success.” Loc Thien Truonc~, 151 Wn. App. at208. We reviewa decision on CR 11 sanctionsfor
an abuse of discretion, asking whether the trial court’s decision was manifestly unreasonable orbased on untenable grounds. MacDonald v. Korum Ford, 80Wn. App. 877, 884, 912 P.2d 1052 (1996). Here, the child support order provided that John was required to obtain health insurance forthe children, and that if he did not do so, he was required to contributea 69 percentshare ofthe premiums paid byJosefin. It is uncontroverted

~‘ John additionally contends that the parties’ agreed final parenting plan requires joint decision-making for non-emergency medical care. He contends that he was not consulted regarding J.K.’s orthodontic treatment and thus should not be financially responsible for it. John cites no authority in support ofthis claim and we do not consider it.

~Although the superiorcourt did notexpressly rule on the CR 11 issue, its denial is implicit given that it granted Josefin’s motion in its entirety. 8No. 79187-7-1/9

thatJohn did not pay hisfull share ofthe premiums afterthe children were enrolled in Josefin’s employer-provided health insurance plan in March of2018. John fails to establish anygrounds forCR 11 sanctions, and the superiorcourtdid notabuse its discretion in declining to impose them. John nextcontendsthat hewas denied due process atthe hearing because the court allowed only five minutes for oral argument. But King County Local Family Law Rule (KCLFLR) 6(f)(1) provides that “[ejach side is allowed five (5) minutes for oral argument, including rebuttal, unless otherwise authorized by the court.” KCLFLR 6(g)(1) provides the procedure by which a litigant may request additional time for oral argument. John did not request additional time norfollow the procedure outlined in KCLFLR 6(g)(1). His own failure to do so does not establish a due process violation. Citing article 1, section 21 oftheWashington constitution, John argues that the issue of whether he breached the CR 2A contract and the amount of the judgment are questions for a jury to decide, and thus he was denied his constitutional rightto ajurytrial. But Josefin did notfile a civil action for breach of contract. Rather, shefiled a motion to enforcean existing child supportorder. John cites no authority in support of his claim that he is entitled to ajurytrial fora post decree motion to enforce. John argues the superior court erred in awarding Josefin attorney fees based on his intransigence. A court may enteran award offees when one party’s intransigence causes the otherpartyto incuradditional legal costs. In re Marriage of Foley, 84Wn. App. 839, 846, 930 P.2d 929 (1997). “Determining intransigence
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is necessarily factual, but may involve foot-dragging, obstructing, filing unnecessary orfrivolous motions, refusing to cooperate with the opposing party, noncompliance with discovery requests, and any other conduct that makes the proceeding undulydifficult orcostly.” In re Marriage ofWixom, 190 Wn. App. 719, 725, 360 P.3d 960 (2015) (citing In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992)). “The party requesting fees for intransigence must show the other party acted in a way that made trial more difficult and increased legal costs” such as “forcing court hearings for matters that should have been handled without litigation.” In re Marriage of Pennamen, 135 Wn. App. 790, 807, 146 P.3d 466 (2006). We review a trial court’s decision on attorney fees for an abuse of discretion. In re Marriage of Bobbitt, 135 Wn. App. 8, 29-30, 144 P.3d 306 (2006). John arguesthathe cannot be intransigentfor“exercising adefense in good faith and asserting contract rights.” But the superior court did not make a finding of intransigence based on John’s defense to the motion. Rather, the courtfound that John was intransigent for repeatedly violating the child support order, obligating Josefin to bring a motion to enforce. The courtfinds thatthe petitioner is entitled to an award of$2500 in her reasonable attorney’s fees due to the respondent’s intransigence, specifically, the CR 2A and child support order are clear and the amounts owed thereunderas claimed bythe petitioner are not disputable. The court’s finding of intransigence is supported by the record. John fails to demonstrate thatthe trial court abused its discretion in awarding attorneyfees for intransigence.
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Both parties seek attorney fees and costs on appeal. John requests fees pursuantto RCW26.18.160, which provides as follows: In any action to enforce a support or maintenance order

. . . the prevailing party is entitled to a recovery ofcosts, including an award for reasonable attorney fees. An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question. John is notthe prevailing party on appeal and is thus not entitled to attorneyfees. Moreover, John failed to request attorney fees on appeal in his opening brief, waiting until the reply briefto raise the issue. Under RAP 18.1(b), a party must devote a section of its opening briefto a request for attorneyfees and expenses. John’s requestdoes not complywith RAP 18.1(b). Josefin requests fees pursuantto RAP 18.9(a), arguing that John’s appeal is frivolous. Because the appeal presents no debatable issues upon which reasonable minds mightdiffer, we award Josefin her reasonable attorneyfees and costs on appeal, subjectto compliance with RAP 18.1. Affirmed 6

WE CONCUR:

6John filed a motiontostrike portionsofJosefin’s responsebrief, arguingthatherrecitation ofthe procedural historywas not relevantto the appeal and served onlyto impugn his character. We deny the motion. Such motions to strike are not favored, and this court has the ability to determinethefacts relevantto afair resolution ofthe issues presented. 11