INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matter ofthe Marriage of: ) NATHAN BROWN III, ) Appellant, ) and ) Ml K. BROWN, ) Respondent. ) DIVISION ONE No. 71398-1-1 UNPUBLISHED OPINION

FILED: June 15, 2015 

### Dwyer, J.—Nathan Brown appeals the dismissal ofhis petition for a 

### parenting plan modification as a sanction, aswell asthe imposition ofterms, for his failure tocomply with thecourt's case scheduling orders. Because hefails to 

### establish any error orabuse ofdiscretion in the trial court's rulings, we affirm. Becausehis appeal isfrivolous, weaward fees on appeal toMi Brown.

I 

### Nathan Brown filed a petition tomodify the parenting plan providing for his 

### three sons toreside a majority ofthetime with his ex-wife Mi Brown.1 Mi responded and opposed Nathan's petition. Following a hearing, a superior court commissioner entered ordersfinding adequate cause for a trial on the petition 

### and appointing a guardian adlitem (GAL) toprepare a report and Forpurposes ofclarity, we referto the parties by theirfirst names. No disrespectis intended.No. 71398-1-1/2
recommendations. After the GAL filed her report, Nathan filed a motion for a temporary order adopting his proposed parenting plan and "several provisions of the GAL report," and terminating child support based on the age of the oldest child and the requested change of residence for the other two children. A commissioner denied Nathan's request for a change inthe children's residential schedule pending trial, but adopted certain recommendations made by the GAL. The commissioner also ruled that no child support adjustment was properly before the court and that the GAL need not file an "interim" report "unless updates are needed for the trial court." Over the next several months, Nathan's attorney filed an agreed order of 

### continuance and appeared bytelephonefor a pretrial conference, butfailed tofile 

### any pleadings required bythe ordersetting the case schedule or the pretrial conference order. For example, he did notfile a witness orexhibit list, a financial declaration, or a trial brief. Shortly before the trial date, Mi filed a motion to 

### dismiss the petition for modification with prejudice and forterms based on Nathan's failure to comply with the case schedule. 

### On the day set for trial, the court considered Mi's motion to dismiss and request for terms. In response to the court's questioning, Nathan's attorney admitted that he did not complywith the scheduling orders, but explained that he believed the case was simple, that the onlywitnesses would be the parties and the GAL, and that the issues were known to the parties based on the initial filings 

### and discussions during settlement conferences. After describing the range of 

### possible sanctions and hearing argument on alternatives, the trial courtfoundNo. 71398-1-1/3 that Nathan's "absolute noncompliance" with court orders and "nothing before the courtwhich would suggest any . . . mitigating circumstances," justified dismissal 

### without prejudice and an award of terms. Thetrial court awarded terms in the amount of 75 percent of Mi's documented attorney fees. Nathan appeals.
II We review a trialcourt's order dismissing a case and imposing terms for 

### noncompliance with courtordersfor abuse ofdiscretion. Apostolis v. City of Seattle, 101 Wn. App. 300, 303-04, 3 P.3d 198 (2000) (trial court "mayimpose such sanctions as itdeems appropriate for unexcused violations of its scheduling 

### orders"); Woodhead v. DiscountWaterbeds, Inc., 78Wn. App. 125, 129, 896 

### P.2d 66(1995) (trial court has "discretionary authority tomanage its own affairs so as to achieve the orderly and expeditious disposition of cases"). Atrial court 

### abuses its discretion only ifits decision ismanifestly unreasonable orexercised
on untenable grounds orfor untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). 

### CR 41(b) authorizes a trial courttodismiss an action for noncompliance with court orders. Apostolis, 101 Wn. App. at 304; Woodhead, 78 Wn. App. at 

### 129. King County Local Civil Rule (KCLCR) 4(g) (1) provides: "Failure tocomply with the Case Schedule may be grounds forimposition of sanctions, including dismissal, or terms." While disfavored, dismissal isjustified when a partywillfully 

### anddeliberately disregards reasonable court orders, resulting in prejudice to the 

### other party, andimpairing theefficient administration of justice. Apostolis, 101No. 71398-1-1/4 Wn. App. at 304; Woodhead. 78 Wn. App. at 130. Disregard of a court order without reasonable excuse or justification is deemed willful. Rivers v. WashState Conference of Mason Contractors, 145 Wn.2d 674, 686-87, 41 P.3d 1175 (2002); Apostolis, 101 Wn. App. at 304; Woodhead, 78 Wn. App. at 130. 

### Appearing pro se in this appeal, Nathan does notidentify a reasonable

excuse orjustification for his attorney's failure to comply with the court's orders. Instead, without citation to relevant authority and for the first time on appeal, 

### Nathan argues that the commissioner's temporary orderadopting portions ofthe GAL report resolved the contested issues in the modification proceeding and rendered trial unnecessary. He claims it is "a mystery" that neither attorney moved to dismiss the modification action immediately as the commissioner "was 

### summarily determining the entire dispute." Br. ofAppellant at 8-9. Nathan misunderstands the nature ofthe order. Rather than resolving the issue of 

### permanent residential placement orending thelitigation, thetemporary order simply provided for the care andplacement ofthechildren pending trial, as 

### requested. See, e^, In reMarriage ofGreenlaw, 67Wn. App. 755, 759, 840 P.2d 223 (1992), rev'd onother grounds, 123 Wn.2d 593, 869 P.2d 1024 (1994). Accordingly, nothing in thetemporary order excused compliance with thetrial court's scheduling orders. Nathan next contends that the court erred as a matter of law by imposing both the sanction ofdismissal as well as terms, when KCLCR 4(g)(1) is written in 

### thedisjunctive. KCLCR 4(g)(1) provides, "Failure to comply with the Case Schedule may be groundsfor imposition of sanctions, including dismissal, orNo. 71398-1-1/5
terms." Generally, we presume "or" is used disjunctively unless the drafter's intent to the contrary is clear. See Guiiosa v. Wal-MartStores. Inc.. 101 Wn. App. 777, 789-99, 6 P.3d 583 (2000), affd, 144 Wn.2d 907, 32 P.3d 250 (2001). Here, KCLCR 4(g)(3) clearly demonstrates such contrary intent: Ifthe Court finds that an attorney or party has failed to comply with the Case Schedule and has no reasonable excuse, the Court may order the attorney or party to pay monetary sanctions to the Court, or terms to any other party who has incurred expense as a result of the failure to comply, or both; in addition, the Court may impose such other sanctions as justice requires. In view of this plain language, the court did notexceed its authority by imposing both a sanction and terms. See also, Woodhead, 78 Wn. App. at 127, 131, 133- 

### 34 (affirming dismissal with prejudice and imposition of terms for failure to comply with court rules and orders regarding service of process). 

### We also reject Nathan's claim that the trial court abused itsdiscretion by 

### imposing terms directly on him when hisattorney admitted responsibility for the failure to follow the court's orders. KCLCR 4(g)(3) authorizes the court to order 

### either a party or an attorney to paytermsfor unreasonable failure tocomply with the case scheduling order. And Nathan does not allegefraud orcontend that he did not authorize his attorney to appear on his behalf. Woodhead, 78 Wn. App. 

### at 132-33 (rejecting argumentthatclient should not be held accountable for attorney's failure to complywith local rule that client did not know). Nathan also contends that Mi was not prejudiced and that she failed to 

### sufficiently mitigate her prejudice. Butthe recorddemonstrates that Mi's attorney 

### notonly prepared and filed the written materials required by the court's orders and participated in settlement conferences, but also contacted Nathan's attorneyNo. 71398-1-1/6 repeatedly by various means inorder to encourage or assist him in complying with the orders and properly preparing the case for trial. And the trial court specifically considered at the hearing evidence of Mi's attorney's efforts to prepare her case while Nathan's attorney failed to provide written materials regarding witnesses, evidence, and exhibits as ordered. Nathan fails to demonstrate any abuse of discretion in the trial court's determination that Mi was prejudiced by his unreasonable failure to follow the court's orders. See, e.g., Apostolis, 101 Wn. App. at 304-05 (unreasonable failure to file timely briefs and

serve documents as ordered prejudiced responding party by forcing it to submit writtenrequests fordocuments, draft briefing without written arguments of 

### opponent, and participatein hearing on arguments notpreviously briefed). Nathan's claim for the first time on appeal that the court failed to 

### sufficiently warn him and his attorney about possible sanctions is also unavailing. 

### On the same day Nathan filed his petition, the court entered the case scheduling order, which states, "Penalties, including but not limited to sanctions set forth in 

### Local Civil [Rule] 4(g) and Rule 37 of the Superior CourtCivil Rules, may be 

### imposed for failure to comply." Several orders in the record contain similar language. 

### Finally, Nathan challenges the amount ofthe terms imposed, arguing that the award of 75 percent of Mi's requested attorney fees as terms constitutes 

### improperfee shifting and is unfair. Relying on Biggs v. Vail, 124Wn.2d 193, 876 P.2d 448 M994V and Scott Fetzer Co. v. Weeks, 122Wn.2d 141,859P.2d 1210 (1993), he also argues that Mi failed to properlysegregate the fees she incurredNo. 71398-1-1/7
due to his "bad acts" from those "normally incurred in an action such as this." Br. ofAppellant at 13. But the trial court awarded attorney fees here as terms under KCLCR 4(g)(4), which provides in pertinent part: "As used with respect to the Case Schedule, 'terms' means costs, attorney fees, and other expenses incurred or to be incurred as a result of the failure to comply." Cases concerning the method for determiningreasonableness of an attorney fee award do not apply to the 

### imposition of terms under KCLCR 4(g)(4). Woodhead, 78Wn. App. at 134 

### (rejecting cases requiring findings regarding amount ofsanction and method for determining reasonableness ofattorney fee awards as inapplicable to imposition of terms under local rules). The trial court considered Mi's attorney's billing 

### records detailing numerous calls, e-mail, and letters to Nathan's counsel 

### regarding failures tocomply with the case schedule as well as herindependent preparation ofthe case for trial. Nathan fails todemonstrate any abuse of discretion in the court's decision to impose 75 percent ofthat amount in terms. 

### Mi requests an award ofattorney fees on appeal, arguing that the appeal isfrivolous. RAP 18.9. An appeal isfrivolous ifit is so totally devoid ofmerit that there is no reasonable possibility of reversal. Green River Cmtv. Coll. Dist. No. 10 v. Higher Educ.Pers.Bd., 107 Wn.2d 427, 443, 730 P.2d 653 (1986). 

### Nathan's appeal presents no debatable issues. Mi isentitled to an award offees and costs on appeal, subject to her compliancewith RAP 18.1. Upon such 

### compliance, a commissioner ofthis courtwill enter an appropriateorder.No. 71398-1-1/8

Affirmed.

We concur: 

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