IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In re the Matter of the Marriage of TAMMY J. TRIPLETT, Respondent, and STEPHANIE L. CASE, Appellant. No. 70959-3-1
DIVISION ONE
UNPUBLISHED OPINION

FILED: July 21, 2014 rv>

V?

Spearman, C.J.

— Stephanie Case appeals the trial court's order granting dismissal of her petition to modify child support and denial of her motion for reconsideration. She argues the trial court erred in ruling on Tammy Triplett's motion to dismiss because (1) the trial court lacked subject matterjurisdiction, (2) she was entitled to defaultjudgment, (3) the motion to dismiss was filed in violation ofthe court rules, (4) the trial court failed to enter required findings of fact and conclusions of law, (5) dismissal without a full evidentiary hearing violated her right to due process, and (6) the trial court's actions demonstrate bias and extreme prejudice. We affirm, and deny each party's request for attorney fees and costs on appeal.
FACTS On January 8, 2013, Stephanie Case filed a motion to adjust her child support obligations. Noting her recent unemployment and outstanding debt, she requested that the court deviate from the standard calculation and reduce her child support obligation to $50 per month, pending reemployment. That same day, Case filed a motion for relief ofjudgments, in which she requested the court mNo. 70959-3-1/2 

### grant relieffrom judgments ordering her to pay part of an outstanding childcare debt which, according to Case, was incurred entirely byTriplett. On February 6, 2013, the trial court granted Case's motion to adjust in part, reducing her support 

### obligation to $200 per child, pending reemployment. The court denied her request for relief from the childcarejudgments. 

### The February 6 order setforth a method for the parties to recalculate child 

### supportobligations once Case found newemployment. The order stated: The obligor shallactively seek reemployment. Obligor shallnotify obligeewithin two (2) days ofobtaining reemployment. When reemployment has been obtained, child support shall be recalculated based on obligor's new income, as well as the 

### obligee's then current income, and the adjusted support shall be effective the month following reemployment. Ifthe parents are 

### unable to reach agreement regarding child support based on their 

### respective incomes, the issue ofthe adjusted and permanent order ofchild support may be addressed on the family law motions calendar, retroactive to the monthfollowing the monthin which the obligor is reemployed. Clerk's Papers (CP) at 30:3.9. 

### After Case returned to employment, she and Triplett were unable to reach 

### agreement regarding child support. Consequently, on June 24, 2013, Case filed
a petition for modification ofher child support obligations. Sherequested a deviation from the standard calculation, based on "extreme involuntary debt," 

### namely, thejudgmentfor outstanding childcare debt. CP at40. The petition was scheduled for trial by affidavit on October 10, 2013.No. 70959-3-1/3 Subsequently, on July 16, 2013, Triplett filed motions to dismiss the petition and to adjust child support. In her motion to dismiss, Triplett alleged, among other things, that "Respondent's Petition does not allege any statutory factors required by RCW 26.09.170 to modify child support and should be dismissed." CP at 51. Triplett noted her motions for oral argument on August 2, 2013, on the family law motions calendar. At the start of the August 2 hearing the commissioner explained to the parties that, because Case's motion for modification had been noted for trial by affidavit, Triplett's motions were 

### improperly set on the family law motions calendar. Thecommissioner declined to rule on the merits of Triplett's motions, dismissed the motions without 

### prejudice, and informed Triplettthatshe could resubmit the motions in writing, without oral argument, to the commissioner presiding overthe trial by affidavit
calendar. 

### OnAugust 6, 2013, Triplett renoted hermotion to dismiss and motion to 

### adjust child support on the trial by affidavit calendarwithout oral argument. On August 9, 2013, Casefiled a motion/declaration for anorder ofdefault against Triplett regarding herpetition to modify child support. All three motions were scheduled for hearing on August 23, 2013. 

### On September 9, 2013, the court entered an orderdismissing Case's 

### petition for modification ofchild support. On the same date, thecourt denied without prejudice Triplett's motion toadjust child support and directed thattheNo. 70959-3-1/4 matter should be renoted on the family law motions calendar. CP at 99-100, 382. 

### Although, the courtdid not specifically address Case's motion fordefault, the dismissal of her petition had the practical effect of denying the motion. Case moved for reconsideration ofthe court's September 9 rulings a few 

### days later. The courtdenied Case's motion for reconsideration on September 16, 2013. On October 4, 2013, Case appealed the dismissal of her petition for modification and the denial of her motion for reconsideration. While this appeal was pending, the parties proceeded to oral argument on 

### Triplett's motion toadjust on October 11, 2013. At thehearing, Triplett presented worksheets documenting Case's earnings and requested that support be 

### recalculated in light ofthose amounts. She alsomoved the court toextend 

### support for the parties' son, S.C., because, according toher, although S.C. was 19 years old, hewas still enrolled in high school. In response, Caseattempted to relitigate issues raised in her unsuccessful petition for modification. Sheargued again that shewas entitled to a deviation, this time citing Triplett's higher income and her own significant debt arising from herperiod ofunemployment. Casealso 

### argued that her support obligation for S.C. had terminated because S.C. had graduated high school. Casepresented a copy ofa screen shot ofS.C.'s Facebook page, in which S.C. represented that hehad graduated from high
school in December 2012.No. 70959-3-1/5 The court granted Triplett's motion to adjust child support in part. It adjusted Case's support obligation based on Triplett's documentation ofwages, but refused to extend support for S.C. because he was over 18 and the evidence

was insufficient to establish that he was still enrolled in high school. 10/11/13 VRP at 13-15; CP 148-55. The court denied Case's request for a downward deviation of her support obligation because the basis for the request was legally
insufficient. Case appeals the orders regarding the motion to dismiss the petition for modification ofchild support, specifically the order reserving the motion to the 

### trial byaffidavit calendar (August 2), the orderdismissing the petition (September 

### 9), and theorder denying themotion toreconsider thedismissal (September 16). Although Case did not file a notice ofappeal regarding the October 11, 2013 child support adjustmentorder, she also seeks review of thatorder.
DISCUSSION 

### Case assigns numerous errorswith respect to the trial court's September 9, 2013 dismissal of herpetition for modification, September 16, 2013 denial of her motion for reconsideration, and October 11, 2013 order granting in part and 

### denying in part Triplett's motion toadjust. As a preliminary matter, we consider theappealability ofthetrial court's October 11 order, which was not designated in Case's notice of appeal.No. 70959-3-1/6 Case seeks review ofthe October 11 order pursuant to RAP 2.4(b), which provides, in relevant part: Order or Ruling Not Designated in Notice. The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if(1) the order or ruling prejudicially affects the decision designated inthe notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review. 

### The application of this rule was discussed in Franz v. Lance. 119Wn.2d 780, 836 

### P.2d 832 (1992). In that case, the appellants contended that because theytimely filed a notice ofappeal from an order imposing sanctions against them, the 

### appellate court could also considerthe underlying judgmentfinding them liable to respondents. The Supreme Court agreed. 

### Aparty need notfile a notice of appeal within 30 days of every appealable order or judgment but may instead awaitthe final decision in the case. If a timely notice ofappeal is filed from that 

### decision, the appellate courtwill review priororders andjudgments, even those which were immediately appealable, ifthey prejudicially affect the final judgment. \± at 781 (citations omitted) (emphasis added). 

### Here, the October11 order was entered well after the orders designatedin the notice. Moreover, the order was responsive to a different motion, brought by


### a different party, than theorders designated in thenotice ofappeal. Although Case contends the October 11 order prejudicially affected the September 9 andNo. 70959-3-1/7 16 orders, she fails to explain in what way. Because Case fails to satisfy both 

### prongs ofRAP 2.4(b) her requestfor review ofthe October 11 order isdenied.1 With respect to the September 9 and September 16 orders, Case raises several procedural and substantive arguments. These arguments lackmerit. First, Case claims that the trial court lacked subject matterjurisdiction. Subject matterjurisdiction is a broad concept, which can only be attacked when the court has no power to entertain the controversy, as when the constitution or 

### legislature explicitly denies jurisdiction. In re Marriage ofMajor, 71 Wn. App. 531, 533, 859 P.2d 1262 (1993). Superior courts are courts ofgeneral 

### jurisdiction, with long-recognized "powerto hearand determine all matters, legal and equitable
. . . except in sofar as these powers have beenexpressly denied." 

### jd,(quoting State exrel. Martin v. Superior Court ofKing County. 101 Wash. 81, 94, 172 P. 257(1918)). 

### Case acknowledges the superior court's authority to hear family law 

### matters andparticularly matters ofchild support. BriefofAppellant at 18-19. Yet, 

### she argues that because themotion todismiss thepetition for modification of support was initially set on thewrong calendar, thecourt losttheability to hear family law matters. Case cites no authority for theproposition thata court is deprived of jurisdiction by such a mechanism, and we rejectthe argument.

1Because wedonot grant review oftheOctober 11 order, we donot address Case's assignments oferror 10, 11, and 12, which relate to that orderonly. 7No. 70959-3-1/8 Next, Case asserts that she was entitled to a defaultjudgment because, in her view, Triplett did not timely respond to the petition of modification. We disagree. CR 12(a)(1) requires a defendant to file a responsive pleading within 20 days ofpersonal service. Similarly, RCW 26.09.175(4) provides: "A responding party's answer and worksheets shall be served and the answer filed within twenty days after service of the petition or sixty days if served out of state. A responding party's failure to file an answer within the time required shall result 

### in entry of a default judgment for the petitioner." Pursuant to CR 12(b)(6), a party


### can satisfy the responsive pleading requirement byfiling a motion forreliefon the basis ofthe plaintiff's failure to state a claim uponwhich reliefcan be granted. Here, Case served her petition to modify on Triplett on June 29, 2013. 

### Seventeen days later, onJuly 16, Triplettfiled a motion to dismiss the petition, in which she asserted as a basis for reliefthat Case had failed to "allege any 

### statutory factors required by RCW 26.09.170 to modify child support." CP at 51. The motion essentially claimed, as in a motion pursuant to CR 12(b)(6), that as a matter oflaw, Case had failed to state a claim upon whichrelief can be granted. 

### As such, the motion is a timely response to the petition. Case was notentitled to

a defaultjudgment. 

### Next, Case seems to argue that Triplett's motion to dismiss should have been barred because, in Case's view, itwas not filed in accordance with the

8No. 70959-3-1/9 court rules. Case cites CR 7(b)2 and LCR7(b)3, which govern the filing of motions and other papers in King County Superior Court. Case maintains that Triplett merely filed a notice of hearing, without any memorandum requesting relief from the court or stating grounds for such relief. She is mistaken. It is undisputed that Triplett filed a motion to dismiss in accordance with the court rules on July 16, 2013. Case contends that the commissioner dismissed this motion during the August 2 hearing, and that Triplett's subsequent 

### filing of a notice of hearing, without the moving papers, is insufficient. But, the report of proceedings and the orderfrom the August 2 hearing make itclear that the commissioner reserved ruling on Triplett's motion to dismiss and merely 

### instructedTriplett to renote the motion on the trial byaffidavit calendar. Case cites no authority requiring a party who is merely rescheduling hearing on a

2CR 7(b) provides in relevant part: Motions and Other Papers. (1) How Made. An application tothecourt for an order shall be by motion which, unless made during a hearing ortrial, shall be made in writing, shall state with particularity thegrounds therefor, andshall setforth thereliefororder sought. Therequirement ofwriting isfulfilled ifthemotion is statedin a written notice of the hearing ofthe motion. 3 LCR 7(b) provides in relevant part: (4) Dates ofFiling, Hearing and Consideration. (A) Filing and Scheduling ofMotion. Themoving party shall serve and file all motion documents no later than six court days before the date the party wishes the motion to be considered. A motion must be scheduled by a party for hearing on ajudicial day. For cases assigned to ajudge, ifthe motion is setfor oral argument on a non-judicial day, the moving party mustreschedule it with the judge's staff; for motions without oral argument, theassignedjudge will consider the motion on the nextjudicial day.No. 70959-3-1/10 

### previously filed motion to resubmit the moving papers. Accordingly, we reject her argument. Case next argues that the trial court erred in dismissing her petition without entering findings and facts and conclusions oflaw, which, in her view,

were required under CR 52. She is incorrect. CR 52(a)(5)(B) provides that findings of fact and conclusions of law are 

### not necessary for "decisions ofmotions underrules 12 or 56 or any othermotion, except as provided in rules 41(b)(3) and 55(b)(2)." Because Case's petition was dismissed pursuant to a motion, and the motion was not a motion for involuntary 

### dismissal under CR41(b)(3) or a defaultjudgment underCR55(b)(2), findings of fact and conclusions of law were not required. 

### Without citing anyauthority, Case argues that thetrial court denied her 

### dueprocess when it dismissed her petition before trial, without permitting herto conduct discovery, submit evidence, ormake argument. This argument lacks merit. As previously discussed, Case's petition was dismissed pursuant to a 

### properly filed pretrial motion. And, to the extentthat Case'salleged due process violations stem from the commissioner's refusal to hear argument or evidence 

### during the August 2hearing, we find no error because, as previously noted, the commissioner did not rule on the merits of either Case's petition to modify or Triplett's motion to dismiss.

10No. 70959-3-1/11 Finally, Case asserts that the commissioner that heard the August 2 motion was biased and prejudiced against her because she is a transsexual female.4 She contends that "the court engaged in demeaning epithets to discriminate, intimidate, harass and publicly humiliate the appellant." Briefof Appellant at 4-6, 27. She asserts that during the course of the hearing, the court used language that demonstrated negative pronoun stereotyping, extreme prejudice, and bias based on her sexual orientation. 

### Canon 2.3(A) of the Code ofJudicial Conduct (CJC) provides that a judge 

### "shall perform the duties of judicial office
. .. without bias orprejudice." Wewill not hesitate to admonish ajudicial officerwhoviolates of this provision. See, e.g., In re Hammermaster. 139 Wn.2d 211, 985 P.2d 924 (1999) (ordering 

### censure and six-month suspension without pay ofjudgefound to have repeatedly violated canons ofthe CJC regarding the duty to be fair, impartial, and respectful of litigants). Based on our review ofthe record in this case, however, we cannot conclude that the trial court demonstrated bias against Case or otherwise treated 

### her disrespectfully. The record reveals thatthecourt referred to Case as "sir" 

### twice on August 8 and three times on October 11. 8/2/13 Verbatim Report of Proceedings (VRP) at4:1, 5:11; 10/11/13 VRP at7:10, 9:15, 9:23, 13:8. The

4Because the same commissioner presided overthe hearings onAugust 2 and October 11, we will consider Case'scomplaints regarding the latter hearing only insofar as they may inform our review ofthe complaint of judicial misconduct in the August 2 proceeding. 11No. 70959-3-1/12 court promptly corrected itself after these occurrences and, at least once, apologized to Case. 10/11/13 VRP at 7:12. Aside from these five occurrences, the court repeatedly referred to Case as "Ms. Case" or "Ma'am." 8/2/13 VRP at 4:1, 5:12; 10/11/13 VRP at 2:20, 2:22, 3:14, 4:11, 4:25, 5:2, 5:4, 5:7, 6:2, 6:25, 7:12, 9:23, 11:13, 11:20, 12:15, 12:20, 13:22, 14:1, 14:6, 14:12. We find the record, taken as a whole, including the court's efforts to promptly correct itself when itmisspoke, its apology to Case, and its favorable ruling on her request to terminate the support obligation as to S.C, evinces no bias or prejudice against Case or any disrespect toward her. Attorney Fees 

### Case requests attorney fees pursuant to RCW 26.09.140 and RAP 18.1. RCW 26.09.140 authorizes the court on appeal to order one party to pay the 

### reasonable attorney fees of the other, based upon the parties' financial
resources. RAP 18.1 sets forth the procedure in this court for obtaining such an 

### award. Case has complied with RAP 18.1(b) byarguing forfees in herbrief. But she has notcomplied with RAP 18.1(c) byfiling an affidavit offinancial need at least 10days beforeargument. Accordingly, Case's request is denied. 

### Triplett requests attorney fees pursuant to RAP 18.9(a), which authorizes the appellate courtto order a party or counselwho files a frivolous appeal to pay sanctions, including an award of attorney fees and costs to the opposing party. See Yurtis v. Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008) (citing

12No. 70959-3-1/13 Rhinehart v. Seattle Times. Inc.. 59 Wn. App. 332, 342, 798 P.2d 1155 (1990)). An appeal is frivolous when itpresents "no debatable issues upon which reasonable minds might differ and
... is so devoid of merit that there is no possibility of reversal." LutzTile. Inc. v. Krech. 136 Wn. App. 899, 906, 151 P.3d 219 (2007). We deny the request because the issues presented in this appeal

are not frivolous.
Affirmed.

WE CONCUR: 

### JuO^y/VAg^ L,J.

S!f 

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