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UNPUBLISHED OPINION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 superior court order enforcing 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 a jury trial. We conclude

that none of John’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 under CR 2A (the “Agreement”) “as a full and

complete settlement of this dissolution action.” The Agreement provided for the

Because the parties share the same last name, we refer to them by their first names.
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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 for 69 percent of the basic child support obligation and Josefin for the

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-curricular activities.

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 cost of camps and extra-curricular activities for the children. This

payment may be modified by mutual agreement twelve months after

signing this Agreement. This payment will be made to Ms. Kannin

on the first of each month.

John also agreed that he would pay Josefin $767 in outstanding child support owed

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

employment at or above her imputed income salary level, the parties

agree to each pay the cost of the health insurance not paid for by her

employer proportionate to their incomes on the Child Support

Worksheet (69/31). If Ms. Kannin acquires a job where health

insurance for dependent 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 for the

children until such time as Ms. Kannin secures full-time employment

again. If Mr. Kannin loses his job, 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 per the Child Support Worksheets.

If Ms. Kannin is unemployed or employed part-time, such expenses

will be paid by John.

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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 court to finalize the case.”

On the same date the parties signed the Agreement, they filed an agreed

child support order. The final order memorialized the $199 activity payment. It also

provided as follows:

For any extracurricular activities not covered under the general

expenses, division of payment will be based upon agreement of the

parties or further order of the 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 of check, or otherwise) within thirty (30) calendar days

of the expense being incurred. The other parent 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.

At the time of the entry of the 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 for the children.

J.K. began receiving orthodontic treatment, 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 of the $193.89 monthly premiums.

On April 11, 2018, J.K.’s orthodontist informed John and Josefin that they

would be responsible for the cost of orthodontic treatment now that it was no longer

covered by J.K.’s health insurance. The record contains a patient ledger from the

orthodontist showing a balance of $3749.28 incurred between April 11 and July 1,

2018. John told the orthodontist that he refused to pay out of pocket for any of the

treatment. On June 1, 2018 John told Josefin he would agree to pay only 50

percent of the cost for the monthly premiums and J.K.’s orthodontic treatment. He

subsequently wrote Josefin a check for $578 as his portion of the 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.

On August 3, 2018, Josefin filed a motion to enforce the child support order.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 of J.K.’s uninsured

orthodontic expenses. In response, John argued that he should not be required to

2 The judgment 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 pursuant to chapter RCW 26.18, rather than a motion to enforce a CR 2A agreement.

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pay Josefin for the children’s activities because he chose to pay for the 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. At the hearing, John provided the court with 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 for a continuance, which the court denied.

The court granted Josefin’s motion and entered a judgment against John in

the amount of $11,704.93. This comprised $767 in outstanding child support,

$7,761 for the monthly activity fees, $544.93 for John’s proportionate share of the

children’s health insurance premiums, and $2,632 for John’s proportionate share

of J.K.’s orthodontic treatment 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 contends that the court erred in enforcing the monthly payment for the

children’s extracurricular activities. He argues that “[w]hen read as a whole” the

language of the Agreement simply required him to “contribute $199 to activity fees

for the children,” and that he did so by paying the activity providers directly. We

reject this claim because the child support order, which adopts the language of the

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 payment can be modified

only by mutual agreement, and John does not establish the existence of any such

agreement. Furthermore, the child support order provides that John may only

unilaterally pay for (and seek reimbursement for) extracurricular activities in excess

of the $199 monthly amount. We decline John’s invitation to venture beyond the

plain language of the order and find ambiguity where 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 under CR 37(b) for violation of a discovery order. Burnet, 131

Wn.2d at 494. These factors include: (1) whether the untimeliness was willful, (2)

whether the other party would suffer substantial prejudice because of the violation,

and (3) whether a lesser sanction 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 summary judgment. 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 DeHeer v. Seattle

Post-Intelliqencer, 60 Wn.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, after diligent search, has found none.”).

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Moreover, even if John had established that the court erred, a lack of Burnet

findings is harmless if the excluded evidence is irrelevant, cumulative, or otherwise

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 receipts for his children’s various extracurricular activities. But the court

already had evidence before it showing that John paid for some of his children’s

activities. None of this 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 that the superior court erred in finding that he failed to

pay his proportionate share of J.K.’s orthodontic treatment as required by the child

support order. He contends that health insurance covered the treatment, and the

order thus unjustly enriches Josefin. But “[t}he party challenging a finding of fact

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 July when the children were uninsured, John

offered no evidence in support of this claim. Substantial evidence in the form of

the patient ledger supported 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.

A trial court may award fees under CR 11 against an attorney or a party for

filing a pleading that is not grounded in fact or warranted by law or is filed in bad

faith for an improper purpose. Loc Thien 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. at 208. We review a decision on CR 11 sanctions for

an abuse of discretion, asking whether the trial court’s decision was manifestly

unreasonable or based on untenable grounds. MacDonald v. Korum Ford, 80 Wn.

App. 877, 884, 912 P.2d 1052 (1996).

Here, the child support order provided that John was required to obtain

health insurance for the children, and that if he did not do so, he was required to

contribute a 69 percent share of the premiums paid by Josefin. 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 of this claim and we do not consider it.

~ Although the superior court did not expressly rule on the CR 11 issue, its denial is implicit

given that it granted Josefin’s motion in its entirety.

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that John did not pay his full share of the premiums after the children were enrolled

in Josefin’s employer-provided health insurance plan in March of 2018. John fails

to establish any grounds for CR 11 sanctions, and the superior court did not abuse

its discretion in declining to impose them.

John next contends that he was denied due process at the 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 nor follow

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 of the Washington 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 right to a jury trial. But Josefin did not file a civil action for breach of

contract. Rather, she filed a motion to enforce an existing child support order. John

cites no authority in support of his claim that he is entitled to a jury trial for a post

decree motion to enforce.

John argues the superior court erred in awarding Josefin attorney fees

based on his intransigence. A court may enter an award of fees when one party’s

intransigence causes the other party to incur additional legal costs. In re Marriage

of Foley, 84 Wn. 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 or frivolous motions, refusing to cooperate with the opposing party,

noncompliance with discovery requests, and any other conduct that makes the

proceeding unduly difficult or costly.” In re Marriage of Wixom, 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 argues that he cannot be intransigent for “exercising a defense 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 court found

that John was intransigent for repeatedly violating the child support order,

obligating Josefin to bring a motion to enforce.

The court finds that the 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 thereunder as claimed by the petitioner

are not disputable.

The court’s finding of intransigence is supported by the record. John fails to

demonstrate that the trial court abused its discretion in awarding attorney fees for

intransigence.

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Both parties seek attorney fees and costs on appeal. John requests fees

pursuant to RCW 26.18.160, which provides as follows:

In any action to enforce a support or maintenance order . . . the

prevailing party is entitled to a recovery of costs, 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 not the prevailing party on appeal and is thus not entitled to attorney fees.

Moreover, John failed to request attorney fees on appeal in his opening brief,

waiting until the reply brief to raise the issue. Under RAP 18.1(b), a party must

devote a section of its opening brief to a request for attorney fees and expenses.

John’s request does not comply with RAP 18.1(b).

Josefin requests fees pursuant to RAP 18.9(a), arguing that John’s appeal

is frivolous. Because the appeal presents no debatable issues upon which

reasonable minds might differ, we award Josefin her reasonable attorney fees and

costs on appeal, subject to compliance with RAP 18.1.

Affirmed 6

WE CONCUR:

6 John filed a motion to strike portions of Josefin’s response brief, arguing that her recitation

of the procedural history was not relevant to the appeal and served only to impugn his character.

We deny the motion. Such motions to strike are not favored, and this court has the ability to

determine the facts relevant to a fair resolution of the issues presented.

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