IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

PHILLIP WADE SMITH,

Appellant,

v.

VERA LYNNE SMITH,

Respondent.

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No. 39342-9-III

Consolidated with

No. 39557-0-III

UNPUBLISHED OPINION

COONEY, J. — In 2018, after 31 years of marriage, Phillip Smith and Vera Lynne 

Smith1separated. Among other accords, they agreed that Phillip would pay Lynne 

$2,200 per month in spousal maintenance. Their agreement was memorialized in a final 

order of legal separation. In 2021, Phillip filed a petition for modification of spousal 

maintenance. The trial court denied his petition. A year later, Phillip filed a second 

petition for modification of spousal maintenance. Lynne moved to dismiss the petition 

under CR 12(b)(6) and CR 56. The trial court granted the motion and entered an order 

that dismissed the petition. Thereafter, Lynne successfully obtained an order of contempt 

against Phillip. Phillip appeals both orders.

 

1 For the sake of clarity, the parties are referred to by their first names. No 

disrespect is intended. Both parties’ briefs and portions of the record refer to “Vera” as 

“Lynne.” For consistency we follow suit.

FILED

JUNE 6, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

2

We decline review of the order dismissing the petition and affirm all other aspects 

of the trial court’s orders.

BACKGROUND 

Phillip and Lynne were married for 31 years before separating in 2018. Prior to 

September 10, 2018, when the final order of legal separation (final order) was entered,

the parties agreed, among other issues, on the division of their estate and spousal 

maintenance. In the trial court’s findings of fact and conclusions of law that were agreed 

to by the parties, the court determined that there was a sizeable disparity between the 

parties’ incomes. The court found Phillip’s gross monthly income was between $7,300 to 

$8,400, while Lynne’s monthly income was $1,600 from part-time employment. The 

court found Lynne could earn up to $2,000 per month with full-time employment.

2

 

The final order awarded Lynne the parties’ home and required her to refinance 

within one year to release the VA3loan back to Phillip. Lynne was also awarded 50 

percent of Phillip’s military pension, including cost of living adjustments (COLA). 

Phillip was ordered to provide health insurance coverage for Lynne under two of his 

policies and, in the event he converted the legal separation into a divorce prior to Lynne 

becoming eligible for social security benefits, pay Lynne an additional sum sufficient for 

 

2 The findings of fact do not state whether the $1,600 or $2,000 per month is a net 

or gross income.

3 United States Veterans Administration.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

3

her to acquire health insurance with “comparable benefits and deductibles.” Clerk’s 

Papers (CP) at 172.

The final order required Lynne to submit a DD-2293 form to the Defense Finance 

Accounting Service (DFAS). Until such time as the DFAS made direct payments to 

Lynne, Phillip was ordered to pay Lynne “her share of the pension directly via allotment 

or direct deposit.” Id. at 173. Should the legal separation be converted into a divorce, 

Lynne would be required to submit a DD-2656-10 form to the DFAS. Lynne attempted 

to file the DD-2293 form with the DFAS, but her paperwork was rejected due to a 

clerical error. Lynne then worked with her attorney and an expert to redraft the order. 

However, Phillip declined to sign the new order because he “did not have a level of trust

with the other side and . . . wanted to make sure there were independent orders.” Id. at 

23. 

On April 13, 2021, Phillip filed a petition for modification of spousal 

maintenance4(first petition). On the same date, Phillip filed a financial declaration in 

support of his petition5(first declaration). Ultimately, the trial court dismissed the first

petition. In May 2022, Lynne filed a motion for contempt, that alleged Phillip had not 

paid the entirety of his spousal maintenance obligation nor her share of the military 

pension. The trial court did not find Phillip in contempt, but cautioned him that a 

 

4 The petition was not designated for our review.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

4

judgment would be entered if he failed to pay any overdue maintenance within 30 days. 

On June 22, 2022, the legal separation was converted to a dissolution. 

PETITION FOR MODIFICATION

In July 2022, Phillip filed a second petition for modification of spousal 

maintenance (second petition). Phillip alleged that there had been a substantial change in 

circumstances that was hampering his ability to pay maintenance and that Lynne no 

longer had the need for maintenance. Lynne responded to the petition and also filed a 

motion to dismiss under CR 12(b)(6) and CR 56, arguing that Phillip failed to “allege[ ]

any specific reasons [the spousal maintenance order] cause[d] him severe economic 

hardship.” CP at 14. 

Phillip moved to strike Lynne’s motion to dismiss. He also filed a declaration that 

alleged a change in circumstances due to increased health insurance payments to Lynne, 

the formal division of his military pension, increased rent that totaled $2,495 per month, 

an appreciation in equity in the parties’ home, and an increase in Lynne’s income. 

Phillip filed a financial declaration (second declaration) that stated his gross 

monthly income was $11,800 and, after deducting $6,068 for taxes, spousal support, and 

the division of his pension, his net monthly income was $5,732. Phillip further declared 

that he paid $2,495 in monthly rental payments for his new residence, resulting in $6,024 

 

5 Phillip’s April 2021 financial declaration was not designated for our review.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

5

in monthly expenses. Additionally, Phillip claimed his minimum monthly credit card 

payments totaled $1,250. 

At a hearing held on September 15, 2022, a superior court commissioner 

reviewed, among other documents, Phillip’s first petition, first declaration, second

petition, and second declaration. The commissioner found Phillip’s net monthly income 

had increased from $4,731 in 2021 to $5,732 in 2022 and that his gross monthly income 

had increased from $8,192 in 2021 to $11,800 in 2022. The commissioner expressed 

confusion as to why Phillip would move into “a place . . . that’s almost $2600 [a month]

to rent, and the maintenance amount is $2200.” Id. at 78. The commissioner concluded 

that Phillip’s increased expenses were not uncontemplated events that would constitute a 

substantial change in circumstances. By written order, the commissioner denied Phillip’s 

motion to strike and granted Lynne’s motion to dismiss the second petition. 

Phillip moved to revise the commissioner’s order. A superior court judge 

reviewed the first petition and determined that “even viewing the evidence in the light 

most favorable to Mr. Smith, the facts that were alleged essentially are the same facts that 

were previously dismissed a year earlier.” Id. at 135. The judge engaged in an analysis 

similar to the commissioner’s, noting that a maintenance obligation may only be 

modified upon a showing of a substantial change in circumstances not contemplated 

when the decree was entered. The judge found Phillip’s new home, increased health 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

6

insurance premiums, and the division of his military pension were events previously 

contemplated by the parties and denied the motion to revise. In its order on revision, the 

judge wrote, “the motion to revise is denied. The court adopts the oral ruling of Comm. 

Pelc in full.” Id. at 117. 

On November 15, 2022, Phillip filed an appeal of the trial court’s order dismissing 

his second petition. 

MOTION FOR CONTEMPT

On November 21, 2022, Lynne filed a motion for contempt, seeking to recover on 

a $2,900.00 judgment that was entered against Phillip for unpaid spousal maintenance

from May 2022, and for $4,300.00 in unpaid spousal maintenance for the months of July 

to October 2022. Lynne also alleged arrears totaling $3,469.01 for unpaid COLA 

increases from Phillip’s pension dating back to 2018. 

Phillip argued that he needed access to Lynne’s financial information to properly 

respond to her contempt motion. Phillip asserted it was Lynne’s “duty to establish 

evidence that payments have not been made.” Id. at 212. In regard to the COLA 

payments, Phillip argued that Lynne needed to provide proof she had filed a DD-2293 or 

DD-2656-10 form with the DFAS. Phillip also alleged that, based on his increased 

expenses, he could no longer afford to pay maintenance. 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

7

In reply, Lynne provided documentation showing electronic monetary transfers 

Phillip had made between August to October 2022. Lynne also asserted that Phillip knew 

she had attempted to submit the proper forms with the DFAS, but could not due to the 

initial order’s language. 

A court commissioner found Phillip had the ability to comply with the 

maintenance order, but chose not to. The commissioner found that, “Mr. Smith has made 

every effort to not follow the final orders. He has filed numerous times, and has paid 

attorney fee retainers amounting to the same amount owed.” Id. at 286. The 

commissioner found that “Mr. Smith has acted in bad faith when refusing to pay spousal 

maintenance” and that his failure to pay the COLA increases was intentional. Id. at 286-

87. The commissioner claimed that, “[t]his is one of the worst showings of bad faith the 

court has seen in a while.” Id. at 286, 303. 

In finding Phillip in contempt, the commissioner incorporated her oral ruling into 

the final order. In her oral ruling, the commissioner found that Phillip’s actions were 

intentional and constituted bad faith because:

He has now paid retainers to two separate attorneys and that’s just the 

retainer, we’re not talking about the money paid subsequent to retainers in

the amount of $7000. He currently owes under this more recent contempt 

order $7769. Rather than paying what the court ordered, he’s choosing to 

pay that for attorneys, that’s fine. That’s your right. But when you’re 

saying you have no money to pay, but yet you’re able to spend that same 

amount of money on attorneys it proves to me bad faith.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

8

Id. at 304. 

The contempt order required Phillip to pay $4,300.00 in past due spousal 

maintenance, $3,469.01 in past due COLAs, and directed him to sign the military pension 

division order so Lynne could begin having payments directly deposited into her account. 

Finally, the commissioner awarded Lynne reasonable attorney fees. As to Phillip’s 

assertation that he was entitled to Lynne’s financial records, the commissioner rejected 

his argument. 

A superior court judge later denied Phillip’s motion to revise the commissioner’s 

order on contempt. 

On March 2, 2023, Phillip filed an appeal of the trial court’s order of contempt. 

Phillip’s appeal of the contempt order was consolidated with his appeal of the order 

dismissing his second petition. 

ANALYSIS 

On appeal, Phillip contends Lynne’s motion to dismiss was procedurally defective

and that the trial court erred in dismissing his second petition and in finding him in 

contempt. 

WHETHER LYNNE’S MOTION TO DISMISS WAS PROCEDURALLY DEFECTIVE

Phillip contends Lynne’s motion to dismiss his second petition was defective 

because it failed to comply with the applicable Local Rules for the Superior Court of 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

9

Spokane County (LCR). Specifically, Phillip asserts that Lynne failed to file a 

memorandum and documentary evidence supporting her motion as required by LCR 

40(b)(9)(B). He further contends that Local Special Proceeding Rule (LSPR) 94.04(l)(2) 

required Lynne to file a financial declaration before being awarded attorney fees. We 

disagree with both arguments.

LCR 40(b)(9)(B) reads:

The moving party shall file a motion, all supporting affidavits or 

declarations and documentary evidence, and a brief or memorandum of 

authorities, unless the legal position is fully and adequately covered by the 

“authorities” section of the issue of law form. These documents shall be 

filed and served no later than twelve (12) days prior to the hearing.

Phillip urges us to interpret this rule as requiring the moving party to file a memorandum 

along with documentary evidence. We decline to adopt such a strict interpretation. First, 

LCR 40(b)(9)(B) concludes by stating “unless the legal position is fully and adequately 

covered by the ‘authorities’ section.” This implies a memorandum may not always be 

necessary. Moreover, when deciding a CR 12(b)(6) motion, generally, a trial court may 

consider only the factual allegations contained in the pleadings, thereby alleviating the 

necessity for documentary evidence. LaRose v. King County, 8 Wn. App. 2d 90, 103, 

437 P.3d 701 (2019). Further, if LCR 40(b)(9)(B) mandated the filing of a memorandum 

and documentary evidence, it would preempt the provisions of CR 12(b)(6). 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

10

Secondly, while LCR 40(b)(9)(B) generally governs the filing and scheduling of 

motions, LCR 40(b)(8) is specific to dispositive motions. LCR 40(b)(8) provides,

“Motions for summary judgment, partial summary judgment, or dismissal are governed 

by LCR 56.” LCR 56 lacks any requirement that a party file a memorandum or 

documentary evidence when moving for summary judgment, partial summary judgment 

or dismissal under CR 12. Rather, LCR 56 merely requires the filing of a motion.

Lynne’s motion to dismiss the second petition was not procedurally defective.

Alternatively, Phillip argues that because Lynne failed to file a financial 

declaration, as required by LSPR 94.04(l)(2), the trial court should have denied her 

motion to dismiss. Under LSPR 94.04(l)(2), both parties are required to file financial 

declarations when one of the parties brings a motion for financial relief. Lynne concedes 

she did not file a financial declaration in conjunction with her motion to dismiss. 

Although Lynne made a request for attorney fees in her response to Phillip’s

second petition, she did not seek financial relief in her motion to dismiss. The final order 

already granted Lynne financial relief. Her motion to dismiss the second petition was 

merely an attempt to maintain the status quo. Because Lynne did not seek financial 

relief, and the court did not order any financial relief when it granted her motion to 

dismiss, the provisions of LSPR 94.04(l)(3), requiring the court to “deny the request, 

continue or strike the hearing, and/or impose sanctions,” is inapplicable.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

11

Lynne’s motion to dismiss the second petition did not offend the local court rules 

for the Superior Court of Spokane County.

WHETHER THE TRIAL COURT ERRED IN DISMISSING PHILLIP’S SECOND PETITION

Phillip contends that the record was sufficient to survive either a motion under 

CR 12(b)(6) or CR 56. Phillip further asserts the court erred in dismissing the second 

petition because Lynne failed to submit any supporting documentation, thus not meeting 

her burden. For the reasons stated below, we decline review.

As an initial matter, we must decide whether to review the judge’s order denying

revision or the court commissioner’s order of dismissal. Generally, we review a superior 

court judge’s ruling on revision, not the commissioner’s initial decision. In re Marriage 

of Lyle, 199 Wn. App. 629, 633, 398 P.3d 1225 (2017). However, “[u]nder RCW 

2.24.050, the findings and orders of a court commissioner not successfully revised 

become the orders and findings of the superior court.” Maldonado v. Maldonado, 197 

Wn. App. 779, 789, 391 P.3d 546 (2017).

Here, not only did the superior court judge deny Phillip’s motion to revise the 

commissioner’s order, she expressly adopted the commissioner’s decision. The judge’s

order states, “the motion to revise is denied. The court adopts the oral ruling of Comm. 

Pelc in full.” CP at 117. Consequently, the commissioner’s order became that of the 

superior court judge.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

12

Next, we must decide whether to review the trial court’s application of 

CR 12(b)(6) or CR 56. Lynne brought a motion to dismiss Phillip’s second petition 

under CR 12(b)(6) and CR 56. In deciding Lynne’s motion, neither the commissioner 

nor the judge articulated whether the motion was being granted under CR 12(b)(6) or 

CR 56. 

A motion to dismiss under CR 12(b)(6) should be granted only if it appears 

beyond doubt that the petitioner cannot prove any set of facts, consistent with the 

petition, to justify relief. Hipple v. McFadden, 161 Wn. App. 550, 556, 255 P.3d 730 

(2011). When deciding a CR 12(b)(6) motion, the trial court must not consider matters 

outside of the pleadings. Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 297, 545 P.2d 13 

(1975). If a trial court considers evidence and matters outside of the pleadings, the 

CR 12(b)(6) motion converts to a CR 56(c) motion. CR 12(c); State v. LG Elecs., Inc., 

185 Wn. App. 394, 404, 341 P.3d 346 (2015). 

Here, the commissioner considered evidence outside of Phillip’s initial pleading. 

Among other documents, the commissioner examined Phillip’s first petition and his first 

declaration. Because the commissioner considered evidence and matters outside of the 

pleadings, the commissioner ineluctably decided the motion as a summary judgment 

motion under CR 56. 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

13

We review a motion for summary judgment de novo. Keck v. Collins, 184 Wn.2d 

358, 370, 357 P.3d 1080 (2015). In deciding a summary judgment motion, the court must 

consider the evidence and all reasonable inferences in the light most favorable to the 

nonmoving party. Id. (citing Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 

(1998)). Summary judgment is appropriate only if there are no genuine issues of material 

fact and the moving party is entitled to judgment as a matter of law. Id. In reviewing an 

order on summary judgment, we engage in the same inquiry as the trial court and 

examine all the evidence presented to the trial court. Highline Sch. Dist. No. 401 v. Port 

of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Folsom, 135 Wn.2d at 663. 

On appeal, the appellant bears the responsibility of providing the reviewing court 

with the precise record considered by the trial court. Tacoma S. Hosp., LLC v. Nat’l Gen.

Ins. Co., 19 Wn. App. 2d 210, 220, 494 P.3d 450 (2021). If an appellate court is hindered 

from independently examining all of the evidence presented to the trial court, it cannot

properly accomplish its charge. Folsom, 135 Wn.2d at 663. Therefore, appellate review 

of a summary judgment order requires the precise record considered by the trial court. 

LeBeuf v. Atkins, 93 Wn.2d 34, 36, 604 P.2d 1287 (1980). Accordingly, we will 

generally not review an alleged error if the relevant part of the record necessary for our 

review is not provided. See State v. Mannhalt, 33 Wn. App. 696, 704, 658 P.2d 15 

(1983).
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

14

In granting Lynne’s motion for summary judgment, the trial court relied heavily 

on Phillip’s first petition and first declaration. The trial court employed a side-by-side 

comparison of the documents from his first petition and second petition. In doing so, the 

trial court concluded the record failed to show that a genuine issue of material fact 

existed as to whether there had been a substantial change in circumstances sufficient to 

support the second petition.

Because Phillip failed to provide the precise record, namely the documents related 

to his first petition for modification,6 we lack the ability to independently examine all of 

the evidence presented to the trial court. Therefore, we decline review of the alleged 

error.

WHETHER THE TRIAL COURT ERRED WHEN IT FOUND PHILLIP IN CONTEMPT

Phillip argues the trial court erred when it found him in contempt because he was 

unable to comply with the final order that required him to pay maintenance. We 

disagree.

We review a trial court’s decision to enter a contempt order for abuse of 

discretion. In re Marriage of Myers, 123 Wn. App. 889, 892, 99 P.3d 398 (2004). “A 

trial court abuses its discretion by exercising it on untenable grounds or for untenable 

 

6 Phillip designated Lynne’s first financial declaration. 
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

15

reasons.” Id. at 892-93 (citing In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 

470 (1995)). 

When a trial court enters a contempt order it must make findings of fact that 

support its judgment. Marriage of James, 79 Wn. App. at 440. “We review the trial 

court’s factual findings for substantial evidence and then determine whether the findings 

support the conclusions of law.” Marriage of Myers, 123 Wn. App. at 893. “Substantial 

evidence” is evidence contained in the record that would convince a “fair-minded, 

rational person of the truth of the declared premise.” In re Marriage of Fahey, 164 Wn. 

App. 42, 55, 262 P.3d 128 (2011). 

In part, contempt is an intentional disobedience of any lawful judgment, decree, or 

order. RCW 7.21.010(1)(b). The law presumes that one is capable of complying with an 

order of the court. In re Pers. Restraint of King, 110 Wn.2d 793, 804, 756 P.2d 1303 

(1988). Therefore, a demonstrated inability to comply is an affirmative defense. Id. 

Here, the trial court found Phillip in contempt due to his intentional and willful 

failure to make maintenance payments as required by the final order. The court found, 

and the record supports, the existence of a valid court order that required Phillip pay 

Lynne $2,200 per month in maintenance and COLAs. Phillip admittedly failed to 

comply with the terms of the order. Rather than produce evidence of compliance, Phillip
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

16

insisted that Lynne disclose financial records to support her allegation that he was in 

arrears. 

Contrary to Phillip’s argument that he lacked the ability to comply with the final 

order, substantial evidence supports the trial court’s finding that he had the ability to 

comply and his disobedience was intentional, willful, and done in bad faith. Between 

entry of the order and when Phillip filed the second petition, his income had increased, 

not decreased as he claimed. Moreover, rather than attempting to pay maintenance, 

Phillip put substantial resources toward being relieved of his support obligation. The 

court found that rather than paying his maintenance obligation totaling $7,769, Phillip

opted to pay $7,0007for two separate attorneys to file motions for discovery and to “do 

anything but pay [the spousal obligation].” CP at 304. As reflected in his $2,495 

monthly rental obligation, rather than conserve assets, Phillip increased his expenditures 

to the detriment of his maintenance obligations.

As to Phillip’s argument that the trial court lacked authority to divide the military 

pension or require him to pay the COLAs, the order on contempt does not run afoul of the 

final order. The final order required Lynne to submit a DD-2293 form to the DFAS. 

Until the DFAS directed payments to Lynne, Phillip was required to pay Lynne “her 

share of the pension directly via allotment or direct deposit.” CP at 173. Due to a 

 

7 The record shows Phillip paid his attorney a retainer of $4,000.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

17

clerical error, the DFAS rejected Lynne’s submissions. Thereafter, Phillip declined to 

sign the redrafted orders. The contempt order did not divide assets; rather, it enforced the 

final order.

Next, Phillip asserts because Lynne sought financial relief, LSPR 94.04(l)(2) 

required that she file a financial declaration. Because Lynne failed to file a financial 

declaration, Phillip argues the court erred in awarding her attorney fees.

RCW 26.18.160 provides that “[i]n any action to enforce a support or maintenance 

order under this chapter, the prevailing party is entitled to a recovery of costs, including 

an award for reasonable attorney fees.” LSPR 94.04(b)(1) reads, “These rules apply to 

matters filed under RCW . . . 26.18.” LSPR 94.04(l)(2) requires a party to file a financial

declaration when requesting financial relief. Under LSPR 94.04(l)(3), a “[f]ailure to file 

financial documents for the motion hearing is a basis for the court to deny the request, 

continue or strike the hearing, and/or impose sanctions.” The rule does not mandate the 

court deny the request, continue or strike the hearing, or impose sanctions; it grants the 

trial court discretion.

The trial court did not abuse its discretion in granting Lynne’s request for attorney 

fees.
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

18

ATTORNEY FEES ON APPEAL

Both parties requested attorney fees on appeal. Phillip contends he has established 

arguable merit in showing that there were uncontemplated substantial changes that 

justified modifying his spousal maintenance obligation and that Lynne consistently failed 

to follow procedural requirements below. Phillip also argues that he has a legitimate 

need to have Lynne pay his attorney fees.

Lynne contends Phillip has not demonstrated any merit to his claims. Lynne 

further argues that Phillip has not shown a need, citing to his continued funding of 

litigation with the attempt of alleviating his maintenance obligation.

Under RAP 18.1(a) attorney fees may be granted on appeal provided the 

applicable law grants a party the right to recover attorney fees before the Court of

Appeals. Under RCW 26.09.140, “[T]he appellate court may, in its discretion, order a 

party to pay for the cost to the other party of maintaining the appeal and attorneys’ fees in 

addition to statutory costs.” In considering an award of attorney fees under this statute,

we “must consider the parties’ relative need and ability to pay.” In re Marriage of 

Shellenberger, 80 Wn. App. 71, 87, 906 P.2d 968 (1995). We also consider “the arguable 

merit of issues raised on appeal.” In re Marriage of Leslie and Verhey, 90 Wn. App. 796, 

807, 954 P.2d 330 (1998).
No. 39342-9-III; No. 39557-0-III

Smith v. Smith

19

Here, Phillip’s appeal lacks merit. Based on Phillip’s failure to properly designate 

the record, we were unable to review his alleged error related to the dismissal of his 

second petition. As far as our review of the contempt order is concerned, Phillip willfully 

opted to direct his resources toward litigation rather than paying his maintenance 

obligation and has otherwise failed to conserve his resources. Indeed, the record before 

us lacks any showing of a substantial change in circumstances that were not contemplated 

when the final order was entered. 

Based on the appeal being deficient in merit, Lynne’s financial need, and Phillip’s 

ability to pay, we grant Lynne’s request for attorney fees.

Affirmed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

Cooney, J.

WE CONCUR:

Lawrence-Berrey, C.J. Pennell, J.