IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CAMERON CORNELL, No. 51305-6-II

Respondent,

v.

MICHAEL C. CODEKAS, UNPUBLISHED OPINION

Appellant.

CRUSER, J. — Michael Codekas appeals the trial court’s final order and findings on 

Cameron Cornell’s petition to modify a parenting plan and order of child support. He argues that 

the trial court violated his due process rights, the appearance of fairness doctrine, and the CJC 

Canon 2.9(C) by improperly considering a deposition transcript that was not admitted into 

evidence. Codekas argues that without the trial court’s reliance on the deposition transcript, its 

findings of fact, specifically the trial court’s domestic violence finding, are not supported by 

substantial evidence. 

Codekas also challenges the trial court’s order of child support, arguing that the trial court 

abused its discretion by imputing his income without finding that he was voluntarily 

underemployed and by deducting retirement contributions from Cornell’s income. Codekas also 

argues that the trial court improperly awarded fees to Cornell under RCW 26.09.260(13). He asks 

us to vacate the trial court’s final orders and remand for a new trial in front of a different judge. 

We affirm the trial court’s orders, but remand to the trial court to strike three findings of fact and 

Filed

Washington State

Court of Appeals

Division Two

October 1, 2019
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2

limited portions of other findings of fact that are not supported by substantial evidence on the 

record, but have no prejudicial effect on the outcome of the proceedings. We also remand to the 

trial court to strike Cornell’s retirement contribution deduction from her income calculation and 

recalculate Cornell’s income and Codekas’s child support obligation. We remand to the same 

judge, as Codekas has not shown that the trial court violated the appearance of fairness doctrine or 

CJC Canon 2.9(C). 

FACTS

I. BACKGROUND

Codekas and Cornell began a relationship in 2006 and had one child together, C.C.,1born 

in 2009. Codekas and Cornell separated when C.C. was two years old. In March 2014, the trial 

court entered a parenting plan, residential schedule, and child support order. The parenting plan 

gave each parent 50/50 residential time and provided for joint decision making. At that time, 

Codekas lived with his mother, Shirley Low. Cornell agreed to the parenting plan because she 

was confident Low’s household had the support to ensure Codekas would be “a good dad.” Ex. 

19 at 84-85. 

In August 2015, Codekas and Cornell disagreed on whether C.C. should attend 

kindergarten at a public or private school. Both parents unilaterally enrolled C.C. in their preferred 

schools. In November 2015, Codekas accused Cornell’s significant other, S.C.,2of molesting C.C. 

 

1 We use the minor’s initials to protect their privacy. 

2 We use initials to refer to Cornell’s significant other because there is no evidence in the record 

of a criminal charge or conviction flowing from this accusation.
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Codekas alleged that C.C. had disclosed the abuse to Low. At Codekas’s direction, Low called 

the police to report the alleged abuse. 

Codekas refused to return C.C. to Cornell. The next day, Cornell filed a petition to modify 

their parenting plan and child support order. Cornell’s petition cites to Codekas’s unilateral 

enrollment of C.C. in his preferred kindergarten and his refusal to return C.C. to Cornell during 

her agreed time with C.C. as the substantial change in circumstances to justify a modification of 

their parenting plan. 

Child Protective Services (CPS) and the Tacoma Police Department investigated the 

allegation. C.C. did not disclose the abuse to either agency. Child Protective Services (CPS) 

determined the molestation allegation was unfounded on December 7, 2015. Codekas filed a 

complaint against the CPS investigator who interviewed C.C. alleging that the investigator was 

biased. On December 14, 2015, the Tacoma Police Department determined the molestation 

allegation was unfounded. The Tacoma Police Department also determined that Codekas’s 

allegation against the CPS investigator was also unfounded. 

Codekas hired his own forensic psychologist to interview C.C. During the interview, C.C. 

purportedly disclosed the abuse that he had described to Low. Following the interview, Codekas 

filed a petition for a sexual assault protection order against S.C. 

On December 18, 2015, Codekas asked Low to help him serve S.C. with the petition and 

order for protection. Codekas and Low, in separate vehicles, began following S.C.’s vehicle. S.C. 

was driving his vehicle and Cornell was a passenger. A car chase ensued. Codekas made multiple 

attempts to drive S.C.’s vehicle over a curb and off the road. Eventually, Low maneuvered her 

vehicle in front of S.C.’s vehicle and stopped abruptly, causing a collision. Low exited her vehicle 
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and served S.C. with the petition and order for protection. Codekas and Low were arrested at the 

scene of the collision. Codekas was charged with one count of harassment – threaten malicious 

acts, one count of reckless endangerment/DV, and one count of reckless endangerment. Low was 

charged with four counts of reckless endangerment/DV. 

After the car altercation, Cornell filed a restraining order and domestic violence protection 

order against Codekas. In February 2016, Codekas proposed to drop his sexual assault protection 

order against S.C. if Cornell agreed to drop her domestic violence protection order against him. 

Cornell agreed, and both petitions were dismissed. 

In July 2016, Codekas filed a cross petition for modification of the parenting plan, 

requesting full custody of C.C. In his declaration in support of his cross petition, Codekas referred 

to the sexual assault allegation against S.C. He claimed Cornell “vehemently stated [C.C.]’s 

disclosure was untrue,” yet she admitted that C.C. does not lie. Clerk’s Papers (CP) at 570. 

Codekas also accused Cornell of not investigating C.C.’s allegations of abuse, but instead Cornell 

sought only to gain full custody of C.C. 

The trial court appointed a guardian ad litem (GAL) on behalf of C.C. The GAL issued a 

report that discussed Codekas’s allegations of sexual abuse against S.C. The GAL reported that 

she had “serious concerns” about how Codekas and Low handled the sexual assault allegation. 

The GAL found that S.C. “has nothing in his background that is concerning” and that “[C.C.] 

appears to have a very warm nurturing relationship with [S.C.].” CP at 33. The GAL testified at 

trial, and her report was admitted into evidence. 
No. 51305-6-II

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II. INCIDENTS OF DOMESTIC VIOLENCE

Cornell disclosed that Codekas committed several acts of domestic violence against 

Cornell throughout their relationship. In 2009, when Cornell was eight months pregnant with C.C., 

Codekas locked Cornell out of their shared apartment. Cornell contacted their landlord to open 

the apartment. Codekas contacted the police to report the landlord when he attempted to let her 

back into their apartment. Codekas denied any recollection of this event at trial. 

In 2010, Codekas was arrested for simple assault (DV) after a confrontation with Cornell. 

Codekas took Cornell’s belongings and pushed Cornell to the ground multiple times. Cornell 

sustained injuries to her wrist and hand. Although the charges were dropped, the incident report 

was admitted into evidence without objection. 

Cornell testified to the 2010 incident at her discovery deposition. At her deposition, 

Cornell stated, 

[Cornell]: He was trying to slam the door, and he slammed the door on my 

fingers, and pushed me back on the ground. There was [sic] multiple pushes. He 

was swearing at me, and calling me a psycho bitch, and expletives, and telling me 

that, you know, he was going to take [C.C.] away from me. 

Ex. 19 at 83. Codekas requested the publication of Cornell’s deposition transcript, but the

deposition was not admitted into evidence. 

Cornell also testified to a 2012 incident at her deposition. She stated that she was aware 

of Codekas’s sister calling the police in 2012 because his sister “was concerned about how 

[Codekas] was disciplining [C.C.].” Ex 19 at 119. At trial, Codekas stated that he did not 

remember this incident. 

In November 2015, following Codekas’s accusation that S.C. had sexually abused C.C., a 

Tacoma Police detective interviewed Cornell. During the interview, Cornell disclosed past 
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domestic violence incidences between herself and Codekas, including when Codekas locked 

Cornell out of their shared apartment, when Cornell was arrested for pushing Cornell, and when 

Codekas “‘cracked [Cornell’s] head’ against the glass door in her apartment.” CP at 359-60; Ex. 

3 at 10. The police report was admitted into evidence without objection. 

The trial court ordered the court-appointed GAL to investigate and address any domestic 

violence by Cornell and Codekas. Her report discusses incidents of Codekas’s domestic violence 

against Cornell, including Codekas’s 2010 arrest for simple assault (DV). The GAL report was 

admitted into evidence without objection. 

Additionally, Wendy Hutchins-Cook, a court-appointed psychologist, performed a 

parenting evaluation. Her report documents interviews with Codekas and Cornell. Hutchins-Cook 

includes multiple different allegations of Codekas’s past abuse against Cornell, including Cornell’s 

statements that Codekas sexually, physically, and emotionally abused Cornell during their 

relationship. Hutchins-Cook’s report quotes Cornell as stating, “‘[Codekas] would get 

emotionally abusive. . . . He was physically abusive, pushing me down once. He forced sex on me 

when I didn’t want it.’” Ex. 3 at 9. Hutchins-Cook’s report quotes Codekas as stating, “‘This was 

shortly after I supposedly raped [Cornell], beat [Cornell], and smashed [Cornell’s] head.’” Ex. 2 

at 3. Hutchins-Cook’s report was admitted into evidence without objection. 

III. TRIAL PROCEEDINGS

The case proceeded to trial in October 2017. The day of trial, Codekas dropped his 

modification petition. Codekas testified that he “changed [his] request” and no longer sought full 

custody. 2 Verbatim Report of Proceedings (VRP) at 394-95. He asked the trial court to maintain 

the parties’ 50/50 plan. Codekas testified that he had actually changed his position and wanted to 
No. 51305-6-II

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maintain the parties’ 50/50 plan in as early as April 2017, however he waited until the day of trial 

to drop his petition that sought full custody of C.C. 

Codekas presented a psychologist, Landon Poppleton, as an expert witness to critique 

Hutchins-Cook’s evaluation. Poppleton testified that he did not have any concerns with the 

methods or conclusions of Hutchins-Cook’s evaluation. Later, when asked if he believed 

Hutchins-Cook’s ultimate recommendations were correct, he testified that he could not say 

whether “she was right or wrong.” 2 VRP at 244. 

Cornell and S.C. testified about Codekas’s history of emotional abuse against Cornell. 

Both Cornell and S.C. testified that Codekas would “bully” Cornell and called Cornell a “bitch.” 

1 VRP at 18-19, 73, 105, 106. Cornell also testified about her income. Cornell testified that she 

contributed to her 401K in the amount of $272 a month. Cornell’s proposed child support order 

and financial declaration were admitted into evidence. 

Following closing arguments, the trial judge invited the parties to note a hearing and make 

objections after reviewing her letter ruling. 

IV. LETTER RULING

The trial court entered a letter ruling on November 6, 2017, followed by written findings 

of fact and conclusions of law, granting Cornell’s petition for modification. 

The trial court made detailed findings of Codekas’s history of domestic violence: 

2. There is a history of domestic violence between the parties. Mother 

alleged that Father raped, beat, and emotionally abused her while they were 

together. It was “usual” for Father to tell her that she was crazy and threaten to take 

[C.C.] away from her. In 2009, police were called because Father locked Mother 

out of the apartment. In March 2010, Mother called the police because Father had 

taken away her car keys, driver’s license, and cell phone; pushed her to the ground, 

causing a sprained wrist and injured hand; and shoved her in the stomach with his 

feet. In 2011, Father “bashed” Mother’s head into a door and called her a “psycho 
No. 51305-6-II

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bitch.” The 2011 incident is what prompted Mother to end the relationship with 

Father. Although Father denied that he assaulted Mother in 2010, the Court 

observed his demeanor during testimony and did not find him credible. 

3. In 2012, at a time when Father was living with [Low] and sister, Father’s 

sister called the police because she was concerned about the way Father was 

disciplining [C.C.]. During trial, Father claimed he did not remember this incident. 

The Court had the opportunity to observe Father’s demeanor and did not find him 

credible. 

CP at 720. 

The trial court concluded that Codekas has a history of domestic violence against Cornell, 

as defined by former RCW 26.50.010(1) (2008), that has continued in this case with Codekas 

“engaging in a low-speed chase” of Cornell. CP at 725. The trial court found that Cornell did not 

ask for restrictions of Codekas’s residential time based on alleged domestic abuse in 2014 because 

“she felt that there would be enough rules and family support in place to make sure that he would 

be a good dad.” CP at 720. 

The trial court also made findings regarding C.C.’s alleged molestation disclosure. The 

trial court found that following the disclosure, “Father immediately called the police to report the 

allegations” and “[a]s a result of Father’s call to law enforcement,” a CPS investigation was 

launched, and S.C. became a criminal suspect. CP at 721. The trial court further found that “[i]n 

spite of the fact that the molestation allegations were deemed unfounded . . ., Father continued to 

maintain that [S.C.] was a danger to [C.C.].” CP at 722. Codekas “cited the allegations as one of 

the bases for his petition for modification” and “did not concede that the allegations against [S.C.] 

were unfounded until trial.” CP at 722. 

The trial court also found that Codekas engaged in an abusive use of conflict and moved 

to modify the parenting plan in bad faith under RCW 26.09.260(13) and CR 11. The trial court 

found that Codekas’s cross petition for a modification and defense to Cornell’s petition were made 
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in bad faith, not well grounded in fact, and interposed for improper purposes, such as to harass 

Cornell and to improperly leverage her into dismissing her modification petition. The trial court 

supported its finding by referencing Codekas dropping his demand for a modification on the day 

of trial, his lack of credibility, and the testimony of Hutchins-Cook and the GAL, whose 

investigations contradicted allegations made by Codekas in support of his petition for 

modification. 

The trial court modified the parenting plan to conform to Hutchins-Cook’s 

recommendations, noting that “[b]oth parties have testified that they believe that the current 

parenting plan is unworkable due to conflict between them.” CP at 724. The trial court also found 

that Codekas’s expert witness, Poppleton, “conceded he did not have any problems with Dr. 

Hutchins-Cook’s findings and conclusions.” CP at 724. The trial court’s letter ruling opened by 

directing the parties to raise any objections to the content of the ruling at the presentment hearing 

and concluded by stating, “Again, any objections or changes to these findings and conclusions, as 

well as arguments relating to fees and costs, can be addressed at a presentment hearing.” CP at 

706. 

V. PRESENTATION HEARING

The presentation hearing on all final orders was held on November 22, 2017. At the 

hearing, the trial court again requested the parties raise their “proposed changes” to the court’s 

orders. 4 VRP at 610. 

First, the court addressed Codekas’s objection to the trial court’s “bad faith” finding against 

Codekas. 4 VRP at 610. The trial court stated that Codekas’s cross petition to modify the parenting 

plan was an abusive use of conflict and that Codekas held the opinion that C.C. was sexually 
No. 51305-6-II

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abused up until the day of trial, which “complicated the litigation.” 4 VRP at 614. The trial court 

found that Codekas’s actions “intended to influence the outcome” of the litigation and “considering 

that all of the investigating agencies had already concluded their work and essentially found the 

allegations to be without merit,” the trial court ordered sanctions pursuant to RCW 26.09.260(13) 

and CR 11 for bad faith litigation on behalf of Codekas. 4 VRP at 614. The trial court ordered 

sanctions against Codekas for $5,000. 

The trial court also addressed the parties’ income calculations for child support purposes. 

The parties agreed that Codekas’s pay stubs indicated his monthly income was $1,600. Codekas’s 

hourly wage as a construction foreman was $25, he attended school part time, and worked “as 

much as he possibly” could. 4 VRP at 624. From this information, the trial court found that 

Codekas was voluntarily underemployed and imputed his monthly income to $2,850. 

Cornell requested a deduction to her income calculation based on her retirement 

contributions. Codekas raised an objection to the deduction because Cornell did not provide 

documentation that she had been making retirement contributions for the year preceding trial, as 

required by RCW 26.19.071(5)(g). The trial court granted Cornell’s request, stating that the court 

was relying on testimony presented at trial and “there was at least circumstantial evidence 

presented that it was paid during the last twelve months.” 4 VRP at 6227. 

The trial court entered all final orders and incorporated its memorandum decision by 

reference into the final orders. The trial court reduced Codekas’s residential time from 50 percent 

to 35 percent. Based on the trial court’s domestic violence findings, the trial court granted Cornell 

sole decision making. The trial court also found Codekas to be the obligor parent and ordered a 

transfer payment of $450 a month. 
No. 51305-6-II

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Codekas appeals the parenting plan, order of child support with worksheets, and order on 

modification. 

ANALYSIS

Codekas challenges a number of the trial court’s findings of fact. Codekas argues that the 

trial court’s domestic violence finding and other findings of fact are supported only by Cornell’s 

deposition transcript, which neither party moved to admit into evidence. Codekas argues that the 

trial court’s reliance on the deposition transcript violates his due process right to a fair trial, the 

appearance of fairness doctrine, and CJC Canon 2.9(C). Codekas also challenges the trial court’s 

imputation of his income based on a finding that his income was “unknown.” Codekas also argues 

that the trial court abused its discretion when deducting Cornell’s retirement contributions from 

her income calculation under RCW 26.19.071(5)(g) and when awarding attorney fees to Cornell 

under RCW 26.09.260(13). 

We hold that to the extent the trial court relied on Cornell’s deposition transcript, its 

reliance was improper. However, the trial court’s reliance on the deposition transcript does not 

demonstrate a violation of Codekas’s due process right to a fair trial, the appearance of fairness 

doctrine, or the CJC Canon 2.9(C). Instead, the challenged findings of fact are either supported 

by other substantial evidence in the record or have no prejudicial effect on the outcome of the 

proceedings. As to the child support order, we hold that the trial court did not abuse its discretion 

when finding Codekas’s income was “unknown” and imputing his income. We hold that the trial 

court abused its discretion when deducting Cornell’s retirement contributions from her income 

calculation. Consequently, we affirm the trial court’s conclusions of law but remand to the trial 

court to strike limited portions of certain challenged findings of fact, and we remand the support 
No. 51305-6-II

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order to strike only Cornell’s retirement contribution deduction and recalculate Cornell’s income. 

We also affirm the trial court’s attorney fees and costs award to Cornell, but decline to award 

Cornell fees and costs on appeal. 

I. LEGAL PRINCIPLES

We review a trial court’s decision to modify a parenting plan for abuse of discretion. In re 

Marriage of Zigler, 154 Wn. App. 803, 808, 226 P.3d 202 (2010). A court abuses its discretion if 

its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Chua,

149 Wn. App. 147, 153-54, 202 P.3d 367 (2009). “A court’s decision is manifestly unreasonable 

if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it 

is based on untenable grounds if the factual findings are unsupported by the record; it is based on 

untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements 

of the correct standard.” In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 136 (1997). 

Parenting plan modifications are rarely reversed on appeal because “‘[t]he emotional and financial 

interests affected by such decisions are best served by finality.’” In re Parentage of Jannot, 149 

Wn.2d 123, 127, 65 P.3d 664 (2003) (quoting In re Parentage of Jannot, 110 Wn. App. 16, 21, 37 

P.3d 1265 (2002)). 

We review a trial court’s findings of fact regarding modification for substantial evidence. 

In re Marriage of Wilson, 165 Wn. App. 333, 340, 267 P.3d 485 (2011). Substantial evidence 

exists when there is sufficient evidence to persuade a rational fair-minded person that the premise 

is true. In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011). The trial court’s 

findings of fact are verities on appeal as long as they are supported by substantial evidence. In re 

Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017). Unchallenged conclusions of law 
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become the law of the case. In re Marriage of Laidlaw, 2 Wn. App. 2d 381, 386, 409 P.3d 1184, 

review denied, 190 Wn.2d 1022 (2018). 

We do not substitute our judgment for the superior court’s judgment, weigh the evidence, 

or evaluate witness credibility. Wilson, 165 Wn. App. at 340. When the superior court has 

weighed the evidence, we determine only whether substantial evidence supports the findings of 

fact and if so, whether the findings support the superior court’s conclusions of law. Id. We review

the superior court’s conclusions of law de novo. In re Marriage of Wehr, 165 Wn. App. 610, 613, 

267 P.3d 1045 (2011).

Pursuant to RCW 26.09.260(4), “[t]he court may reduce or restrict contact between the 

child and the parent with whom the child does not reside a majority of the time if it finds that the 

reduction or restriction would serve and protect the best interests of the child using the criteria in

RCW 26.09.191.” Under former RCW 26.09.191 (2011), a trial court must limit a parent’s 

residential time and may limit a parent’s decision making if that parent has a history of acts of 

domestic violence. Domestic violence includes any “[p]hysical harm, bodily injury, assault, or the 

infliction of fear of imminent physical harm, bodily injury or assault” between household 

members. Former RCW 26.050.010(1)(a). 

II. TRIAL COURT’S USE OF THE DEPOSITION TRANSCRIPT

Codekas challenges a number of the trial court’s findings of fact, contending that the trial 

court improperly relied on Cornell’s deposition transcript, which neither party moved to admit into 
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evidence.3 Codekas argues that the trial court’s use of the deposition transcript as substantive 

evidence violates his due process right to a fair trial, the appearance of fairness doctrine, and the 

CJC Cannon 2.9(C). 

A. DUE PROCESS AND JUDICIAL BIAS 

Codekas argues that his constitutional right to a fair trial was infringed by the trial court’s 

reliance on Cornell’s deposition transcript in her findings of fact, which was information outside 

of the trial court record. As a result of the trial court’s error, Codekas argues that the judge’s 

“‘impartiality may be reasonably questioned.’” Opening Br. of Appellant at 24 (quoting State v. 

Ra, 144 Wn. App. 688, 704-05, 175 P.3d 609 (2008)). Codekas also claims that the trial judge 

violated the CJC by performing her own investigation, considering evidence not presented at trial, 

and advocating for Cornell. We disagree. 

At trial, Codekas requested the publication of Cornell’s deposition transcript for the 

purpose of impeaching Cornell’s credibility. CR 32(a)(1). Codekas did not seek to admit the 

deposition transcript into evidence. Impeachment evidence may be considered to determine 

witness credibility and may not be used as substantive evidence. State v. Garland, 169 Wn. App. 

869, 885, 282 P.3d 1137 (2012); ER 613(b). 

 

3 Codekas also argues that the trial court erred when it made the domestic violence finding against 

him because Cornell did not allege domestic violence in her modification petition and she did not 

argue for a domestic violence finding at trial. However, Codekas does not provide us with any 

argument or citations to legal authority to support his assertion that the trial court cannot make a 

domestic violence finding sua sponte. RAP 10.3(a)(6). “Such ‘[p]assing treatment of an issue or 

lack of reasoned argument is insufficient to merit judicial consideration.’” West v. Thurston 

County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012) (alteration in original) (quoting Holland v. 

City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998)); see RAP 10.3(a)(6). Accordingly, 

we do not address his argument. 
No. 51305-6-II

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However, Codekas raises this error for the first time on appeal. Under RAP 2.5(a), we 

generally do not entertain issues not raised in the trial court. The purpose of this rule is to 

“‘encourage the efficient use of judicial resources . . . by ensuring that the trial court has an 

opportunity to correct any errors, thereby avoiding unnecessary appeals.’” State v. Fenwick, 164 

Wn. App. 392, 398, 264 P.3d 284 (2011) (alteration in original) (internal quotation marks omitted) 

(quoting State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011)). An exception to this general 

rule is a “‘manifest error affecting a constitutional right.’” State v. O’Hara, 167 Wn.2d 91, 98, 

217 P.3d 756 (2009) (quoting RAP 2.5(a)). 

Following closing arguments, the trial judge invited the parties to note a hearing and make 

objections after reviewing her letter ruling. The trial judge opened her letter ruling by directing 

the parties to make objections to the content of her letter at a presentment hearing and concluded 

her letter by stating, “Again, any objections or changes to these findings and conclusions, as well 

as arguments relating to fees and costs, can be addressed at a presentment hearing.” CP at 706. 

At the presentment hearing, Codekas did not raise any objection to the trial court’s “history of 

domestic violence” findings or any other findings of fact. CP at 701.

Codekas had ample opportunity to raise his objections to the trial court’s findings below 

and failed to do so. Further, Codekas does not demonstrate how the trial court’s reliance on the 

deposition transcript that Codekas himself offered to publish at trial impacts the judge’s neutrality 

against Codekas. Moreover, Codekas does not demonstrate that the error was “manifest” or that 

the error resulted in “‘practical or identifiable consequence[s].’” O’Hara, 167 Wn.2d at 99 

(quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). Codekas claims that the 

trial court’s findings and ultimate decision rely only on the deposition transcript. However, as we 
No. 51305-6-II

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discuss below, the findings of fact that Codekas challenges are either supported by other substantial 

evidence in the record or have no prejudicial effect on the outcome of the proceedings. 

B. CHALLENGED FINDINGS OF FACT

In determining whether substantial evidence exists to support the trial court’s finding of 

fact, we review the record in the light most favorable to the party in whose favor the findings were 

entered, here Cornell. Zigler, 154 Wn. App. at 812. 

1. Finding of Fact 2

Codekas challenges finding of fact 2, which supports the trial court’s conclusion that 

Codekas has a history of domestic violence as defined by former RCW 26.050.010(1). Finding of 

fact 2 relays Codekas’s history of domestic violence against Cornell, including Codekas’s alleged 

physical, sexual, and emotional abuse against Cornell. 

Codekas argues that the findings were not supported by substantial evidence because the 

findings rely on Cornell’s deposition, which was not admitted into evidence at trial. To the extent 

that the trial court relied on Cornell’s deposition testimony, its reliance was improper but does not 

invalidate finding of fact 2. However, substantial evidence in the record supports the trial court’s 

history of domestic violence finding. 

First, the trial court’s finding that Cornell alleged that Codekas “raped, beat, and 

emotionally abused her” was supported in both Hutchins-Cook’s report and the GAL report. CP 

at 720. Hutchins-Cook’s report quotes Cornell as stating, “‘[Codekas] would get emotionally 

abusive. . . . He was physically abusive, pushing me down once. He forced sex on me when I 

didn’t want it.’” Ex. 3 at 9. Hutchins-Cook’s report and the GAL report were admitted as evidence 

at trial. 
No. 51305-6-II

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The 2009 incident where “police were called because Father locked Mother out of the 

apartment” is supported by substantial evidence. CP at 701. The incident report following the 

molestation allegation against S.C. states that Cornell “explained one time [Codekas] locked her 

out of the apartment while she was pregnant and the apartment manager had to let her back in and 

the police were called.” CP at 359. The incident report was admitted into evidence. 

Codekas’s 2010 arrest for simple assault (DV), when he reportedly took Cornell’s “car 

keys, driver’s license, and cell phone; pushed her to the ground, causing a sprained wrist and 

injured hand; and shoved her in the stomach with his feet” is supported by ample evidence. CP at 

720. The full incident report of the assault was admitted into evidence. The GAL report references

Codekas’s 2010 arrest for simple assault (DV) as an incident of Codekas’s domestic violence

against Cornell. Additionally, the incident report following the molestation allegation against S.C. 

cites to Codekas’s arrest for pushing Cornell. All reports were admitted into evidence. 

The 2011 incident where Codekas reportedly “bashed” Cornell’s head into a door is 

similarly supported by substantial evidence. CP at 720. The incident report following the 

molestation allegation references the 2009 abuse incident where Codekas “‘cracked [Cornell’s]

head against the glass door in her apartment.” CP at 359-60; Ex. 3 at 10. Similarly, HutchinsCook’s report quotes Codekas as stating, “‘This was shortly after I supposedly raped [Cornell], 

beat [Cornell], and smashed [Cornell’s] head.’” Ex. 2 at 3. Again, the incident report and 

Hutchins-Cook’s report were admitted into evidence at trial. 

Last, Codekas argues that the trial court’s finding that he called Cornell a “‘psycho bitch’” 

is supported by only Cornell’s deposition transcript, which was not admitted into evidence. CP at 

720. Although ample evidence in the record supports a finding that Codekas engaged in name 
No. 51305-6-II

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calling, including calling Cornell a “bitch,” the record does not support a finding that Codekas 

called Cornell a “‘psycho bitch.’” CP at 720. Therefore, we remand to excise the word “psycho” 

from finding of fact 2, but hold that substantial evidence supports what remains of the finding as 

well as the trial court’s conclusion that Codekas has a history of domestic violence, as defined by 

former RCW 26.050.010(1). 

2. Finding of Fact 3

Codekas challenges the trial court’s finding of fact 3 that states Codekas’s sister called the 

police in 2012 “because she was concerned about the way [Codekas] was disciplining [C.C.].” CP 

at 720. The trial court noted that during trial, Codekas “claimed he did not remember this incident. 

The Court had the opportunity to observe Father’s demeanor and did not find him credible.” CP 

at 720. 

Cornell questioned Codekas about the 2012 police report, but Codekas stated that he did 

not remember the incident. The only other statements regarding this incident were contained in 

Cornell’s deposition transcript. Therefore, we remand to the trial court to strike finding of fact 3 

because it is not supported by substantial evidence. We note that striking finding of fact 3 has no 

prejudicial effect on the outcome of the proceedings, as other substantial evidence in the record 

forms the strong basis for the trial court’s domestic violence finding against Codekas. 

3. Finding of Fact 4

Codekas challenges the trial court’s finding that in 2014, Cornell “did not ask for any 

restrictions on [Codekas’s] residential time based on alleged domestic violence because she felt 

that there would be enough rules and family support in place to make sure that he would be a good 

dad.” CP at 701. 
No. 51305-6-II

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At trial, Cornell did not testify about her reasoning for not seeking restrictions on 

Codekas’s residential time when the parties entered the first parenting plan and child support order 

in 2014. The only statements Cornell made regarding her reasoning for not seeking restrictions 

were at her deposition. Therefore, the trial testimony does not support finding of fact 4.

4. Findings of Fact 11 and 13

Codekas challenges the trial court’s statement that Codekas called the police following 

C.C.’s alleged molestation disclosure. (“Father immediately called the police. . . . As a result of 

Father’s call to law enforcement, a CPS investigation was launched.”). CP at 702. Codekas’s 

sexual assault protection order states that Codekas “told [Low] to call the police.” Ex. 25 at 4. 

The trial testimony supports the fact that Codekas himself did not call the police. Rather, Codekas 

instructed Low to call the police following C.C.’s alleged disclosure. We affirm the findings but 

on remand instruct the trial court to strike the statement that “Father” called law enforcement and 

revise findings of fact 11 and 13 to reflect that Low called law enforcement. 

5. Finding of Fact 18

Codekas challenges the trial court’s finding that “[i]n spite of the fact that the molestation 

allegations were deemed unfounded in February 2016, [Codekas] continued to maintain that [S.C.] 

was a danger to [C.C.].” CP at 703. “[Codekas] cited the allegations as one of the bases for his 

petition for modification, filed in July 2016.” CP at 703. 

Codekas’s declaration in support of his cross petition included the following in support of 

adequate cause: 

When [C.C.] made a disclosure of sexual abuse by [S.C] to my mom, [Cornell’s] 

first move was to file a petition to modify the parenting plan, seeking to drastically 

reduce my time . . . without ever hearing what [C.C.] disclosed or seeing the results 

of a forensic interview. [Cornell] has vehemently stated [C.C.]’s disclosure was 
No. 51305-6-II

20

and is untrue, yet, she admitted . . . that [C.C.] “doesn’t normally just say things 

that aren’t true.” . . . It is extremely concerning that she did not even investigate the 

allegations, but chose to attempt to gain full custody, thus ensuring that [C.C.] 

would be living full time in the same household as his potential abuser.

CP at 569-70. 

We do not substitute our judgment for that of the trial court and defer to the trial court’s 

determinations on the persuasiveness of the evidence. Snyder v. Haynes, 152 Wn. App. 774, 779, 

217 P.3d 787 (2009). We defer to the trial court’s interpretation of Codekas’s declaration. The 

declaration supports the trial court’s finding. 

6. Finding of Fact 19

Codekas also challenges the trial court’s finding that Codekas “did not concede that the 

allegations against [S.C.] were unfounded until trial.” CP at 703. Codekas argues that “the record 

is undisputed that he accepted the CPS report that the allegations were unfounded and thereafter 

dismissed the sexual assault petition against [S.C.].” Opening Br. of Appellant at 26. 

The record does not support Codekas’s contention. On December 7, 2015, the CPS report 

came back unfounded. After the report came back unfounded, Codekas filed a complaint against 

the CPS investigator, alleging that the investigator was biased against him. On December 14, 

2015, the Tacoma Police Department also determined that the molestation allegation was 

unfounded. 

However, Codekas and Low served S.C. with the sexual assault protection order on 

December 17, 2015, after CPS and the Tacoma Police Department had determined that the 

allegations were unfounded. Furthermore, the court heard testimony on multiple occasions that 

Codekas dismissed his sexual assault petition against S.C. only after Cornell agreed to dismiss her 
No. 51305-6-II

21

domestic violence protection order against Codekas, not because Codekas believed that the 

allegations were unfounded. 

We hold that substantial evidence supports this finding. 

7. Finding of Fact 31

Codekas challenges the trial court’s finding that Dr. Poppleton “conceded that he did not 

have any problems with Hutchins-Cook’s findings and conclusions.” CP at 705. Codekas argues 

that this finding is not supported by substantial evidence because Dr. Poppleton was critical of 

Hutchins-Cook’s analysis. We disagree. Although the record supports a finding that Poppleton 

was critical of Hutchins-Cook’s analysis, Poppleton did not testify that he had any issues in regards 

to Hutchins-Cook’s findings and conclusion. 

8. Finding of Fact 32

Codekas challenges the trial court’s finding that “[b]oth parties have testified that they 

believe that the current parenting plan is unworkable due to conflict between them” because 

Codekas testified at trial that he sought to maintain the current 50/50 plan. CP at 705. Codekas is 

correct that the trial testimony does not support finding of fact 32. Although Codekas previously 

argued for a modification because “the conflict has grown between us to the point that the existing 

50/50 plan is no longer in [C.C.]’s best interest,” Codekas changed his position the day of trial by 

dropping his modification petition. CP at 569. At trial, Codekas “changed [his] request” and asked 

the trial court to maintain the parties’ 50/50 plan. RP at 395. 

Challenged findings are verities on appeal if supported by substantial evidence. Robel v. 

Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). We affirm the trial court’s finding of fact 

2 due to extensive evidence in the record that supports the trial court’s conclusion that Codekas 
No. 51305-6-II

22

has a history of domestic violence as defined by former RCW 26.050.010(1). However, we 

remand to strike the word “psycho” from finding of fact 2. We affirm the trial court’s findings of 

fact 11 and 13, which state that the police were called following C.C.’s alleged molestation 

disclosure, but remand to strike the phrase “Father called,” as substantial evidence supports a 

finding that Low, not Codekas, called the police. We affirm the trial court’s interpretation of 

Codekas’s petition for modification in finding of fact 18, as well as the trial court’s finding that 

Codekas did not concede that the allegations were unfounded until trial in finding of fact 19. Last, 

we affirm the trial court’s finding of fact 31, which states that Dr. Poppleton did not have any 

problems with Hutchins-Cook’s findings and conclusions. 

We remand to strike finding of fact 3, which relays an incident in 2012 where Codekas’s 

sister allegedly called the police due to concerns regarding Codekas’s discipline of C.C., and 

finding of fact 4, which explains Cornell’s reasoning for not seeking restrictions on Codekas when 

entering the first parenting plan and child support order. We also remand to strike the finding that 

both parties testified as to their belief that the parenting plan was unworkable, supporting finding 

of fact 32. Although not supported by substantial evidence on the record, we hold that findings of 

fact 3, 4, and 32, and the limited portions of findings of fact 2, 11, 13, 18, and 31 that we remand 

to strike do not have a prejudicial effect on the outcome of the proceedings. Therefore, we affirm 

the trial court’s final orders. 

IV. CHILD SUPPORT

Codekas argues that the trial court abused its discretion by improperly finding his income 

was unknown and imputing his income. He also argues that the trial court abused its discretion 

when deducting Cornell’s retirement contributions. Cornell argues that the trial court properly 
No. 51305-6-II

23

imputed Codekas’s income when it found that his income was unknown because Codekas failed 

to provide the trial court with any testimony, financial declaration, or tax returns for the trial court 

to determine Codekas’s actual income. Cornell further contends that the trial court properly 

deducted her retirement contributions from her income calculation. We hold that the trial court 

did not abuse its discretion when imputing Codekas’s income, but abused its discretion when 

deducting Cornell’s retirement contributions from her income calculations. We remand to strike

Cornell’s retirement contributions and recalculate Cornell’s income calculation and the transfer 

payment amount accordingly. 

A. INCOME IMPUTATION

Codekas argues that the trial court abused its discretion by improperly imputing his income 

to $2,850 because “his income was established by nearly ten months of paystubs” and the court 

did not make a finding that Codekas is voluntarily underemployed as required by RCW 

26.19.071(6). Opening Br. of Appellant at 27.

RCW 26.19.071(6) discusses when and how income should be imputed to a parent, in part, 

as follows:

The court shall impute income to a parent when the parent is voluntarily 

unemployed or voluntarily underemployed. The court shall determine whether the 

parent is voluntarily underemployed or voluntarily unemployed based upon that 

parent’s work history, education, health, and age, or any other relevant factors. A 

court shall not impute income to a parent who is gainfully employed on a full-time 

basis, unless the court finds that the parent is voluntarily underemployed and finds 

that the parent is purposely underemployed to reduce the parent’s child support 

obligation. . . . In the absence of records of a parent’s actual earnings, the court 

shall impute a parent’s income in the following order of priority:

(a) Full-time earnings at the current rate of pay.

(Emphasis added.)
No. 51305-6-II

24

Where income is unknown because of voluntary underemployment or voluntary 

unemployment, a parent’s income shall be based on the parent’s full-time earnings at the current 

rate of pay. RCW 26.19.071(6)(a). 

Turning to the present case, Codekas argues that the trial court abused its discretion when 

imputing his income because his pay stubs show he is “‘gainfully employed on a full-time basis’” 

and the trial court did not make a finding that he is underemployed for the purpose of reducing 

child support as required by RCW 26.19.071(6). Opening Br. of Appellant at 28 (quoting In re 

Marriage of Peterson, 80 Wn. App. 148, 153, 906 P.2d 1009 (1995)). Codekas provided the trial 

court with 10 pay stubs, which indicated that his hourly wage as a construction foreman was $25 

and he averaged a monthly income of about $1,600. Simple division shows that Codekas averaged 

about 16 hours of work per week. 

The trial court did not abuse its discretion by finding that an average of 16 hours of 

employment per week is not full-time employment. Because Codekas’s pay stubs proved that he 

is not “‘gainfully employed on a full time basis,’” the trial court was not required under RCW 

26.19.071(6) to make a finding of whether Codekas was underemployed for the purpose of 

reducing child support. Opening Br. of Appellant at 28 (quoting Peterson, 80 Wn. App. at 153).

The trial court also did not abuse its discretion when finding that Codekas’s income was 

unknown. Codekas did not provide the trial court with a complete understanding of his gross or 

net income, personal expenses, assets, and debts, or his tax returns as require by RCW 
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25

26.19.071(2).4 “In the absence of records of a parent’s actual earnings, the court shall impute a 

parent’s income.” RCW 26.19.071(6). The order of child support reveals this lack of information, 

therefore the trial court correctly concluded that Codekas’s income was “unknown.” RCW 

26.19.071(6).

We hold that the trial court did not abuse its discretion when it found that Codekas’s income 

was “unknown” and when it imputed his income based on his full-time earnings at his current rate 

of pay, as required by RCW 26.19.071(6).

B. RETIREMENT CONTRIBUTIONS

Codekas also argues that the trial court abused its discretion by improperly deducting 

Cornell’s retirement contributions from her income calculation under RCW 26.19.071(5)(g) 

because Cornell did not produce evidence that she had been contributing to her retirement fund 

during the one-year period preceding trial. Codekas requests us to vacate the child support order 

and remand. 

At trial, Cornell testified that she contributes to her 401K in the amount of $272.5 Codekas 

did not question Cornell about her financial declaration or proposed child support order. The trial 

 

4

“Tax returns for the preceding two years and current paystubs shall be provided to verify income 

and deductions. Other sufficient verification shall be required for income and deductions which 

do not appear on tax returns or paystubs.” RCW 26.19.071(2)

5 Contrary to Cornell’s argument at the hearing for the presentation of final orders, Cornell did not 

testify at trial and her financial declaration does not state that she “routinely” contributes to her 

401K or “historically” has contributed to her 401K. 
No. 51305-6-II

26

court granted Cornell’s request for a deduction at a posttrial hearing.6 The trial court found that 

Cornell’s income calculation, including a reduction for her retirement contributions, was by the 

evidence presented at trial and “there was at least circumstantial evidence presented that it was 

paid during the last twelve months.” 4 VRP at 626-27. 

RCW 26.19.071 provides the standards for determining income for purposes of calculating 

child support obligations. RCW 26.19.071(5)(g) specifically deals with deductions and provides

in relevant part, 

The following expenses shall be disclosed and deducted from gross monthly 

income to calculate net monthly income:

(g) Up to five thousand dollars per year in voluntary retirement 

contributions actually made if the contributions show a pattern of contributions 

during the one-year period preceding the action establishing the child support 

order. 

(Emphasis added.)

As the moving party, Cornell bears the burden of showing that she had been contributing 

to her retirement fund during the one-year period preceding the action. RCW 26.19.071(5)(g); In 

re Marriage of McCausland, 159 Wn.2d 607, 615, 152 P.3d 1031 (2007). Cornell’s financial 

declaration provided only the monthly amount that Cornell contributes to her 401K, and she did 

not provide any documentation or testimony at trial that she contributed to her 401K during the 

one-year period preceding trial. RCW 26.19.071(5)(g). 

 

6 Cornell argues that Codekas waived his opportunity to examine Cornell’s financial information 

when he failed to engage in discovery on the child support issue or cross-examine Cornell at trial. 

However, the trial court did not address the child support issue until the hearing for the presentation 

of final orders. 
No. 51305-6-II

27

The trial court abused its discretion by deducting Cornell’s retirement contributions 

because Cornell failed to meet her burden under RCW 26.19.071(5)(g). We remand the support 

order to strike only Cornell’s retirement contribution deduction and recalculate Cornell’s income 

as well as the transfer payment amount. 

V. ATTORNEY FEES

Codekas argues that the trial court improperly awarded attorney fees to Cornell under RCW 

26.09.260(13) and CR 11 because Codekas’s cross petition and defense to Cornell’s petition to 

modify the parenting plan was “‘not well grounded in fact’” and “‘interposed for an improper 

purpose.’” Opening Br. of Appellant at 30. Cornell argues that the trial court’s award of attorney 

fees was supported by the record and adequate findings. Cornell also requests fees on appeal under 

RAP 18.1 and RCW 26.09.140. 

Attorneys and parties who sign and file a pleading, motion, or legal memorandum to the 

court must comply with CR 11 requirements. These include that the pleading is well grounded in 

fact and warranted by existing law and that it was not brought to harass, cause unnecessary delay, 

or increase costs in litigation. CR 11. The rule’s purpose is to deter baseless filings and curb 

abuses of the judicial system but not to chill enthusiasm or creativity in pursuing factual or legal 

theories. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 219, 829 P.2d 1099 (1992). CR 11 requires 

a pleading have a factual and legal basis. When a court finds that either is missing, the court must 

also find that the pleading’s author failed to conduct a reasonable inquiry into the pleading’s factual 

and legal basis. Bryant, 119 Wn.2d at 220. 

We review an attorney fee award for an abuse of discretion, and we will not interfere with 

the award unless the trial court abuses its discretion by basing its decision on unreasonable or 
No. 51305-6-II

28

untenable grounds. Bay v. Jensen, 147 Wn. App. 641, 659, 196 P.3d 753 (2008). Similarly, we 

review a trial court’s decision on the question of bad faith for abuse of discretion. In re PearsallStipek, 136 Wn.2d 255, 265, 961 P.2d 343 (1998).7

 Under RCW 26.09.260(13), “[i]f a court finds 

that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court 

shall assess the attorney’s fees and court costs of the nonmoving parent against the moving party.” 

Bad faith litigation includes prelitigation misconduct, procedural bad faith, and substantive bad 

faith. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999). 

The trial court found that Codekas’s cross petition for a modification was an abusive use 

of conflict and that Codekas held the opinion that C.C. was sexually abused up until the day of 

trial, which “complicated the litigation.” 4 VRP at 614. The trial court found that Codekas’s 

actions “intended to influence the outcome” of the litigation and “considering that all of the 

investigating agencies had concluded their work and essentially found the allegations to be without 

merit,” the trial court ordered sanctions under RCW 26.09.260(13) and CR 11 for bad faith 

litigation on behalf of Codekas. 4 VRP at 614. The court awarded $5,000 to Cornell. 

The trial court also made written findings to support its imposition of sanctions. The trial 

court stated that Codekas’s cross petition for a modification and defense to Cornell’s petition was 

made in bad faith, not well grounded in fact, and interposed for improper purpose such as to harass 

Cornell and to improperly leverage her into dismissing her modification petition. To support its 

finding, the trial court referenced Codekas dropping his cross petition for a modification on the 

 

7

In the absence of any findings of bad faith, the trial court abused its discretion in awarding 

attorney fees under the authority requiring a finding of bad faith. Pearsall-Stipek, 136 Wn.2d at 

266-67. 
No. 51305-6-II

29

day of trial, Codekas’s lack of credibility, and the testimony of Hutchins-Cook and the GAL, 

whose investigations contradicted allegations made by Codekas in support of his cross petition. 

Codekas challenges the trial court’s finding that his cross petition and defense to Cornell’s 

petition were made in bad faith, arguing that “it is not bad faith to defend against a petition for 

modification” nor was his cross petition brought in bad faith just because he “failed to prove his 

allegations.” Opening Br. of Appellant at 31. 

However, by December 14, 2015, both CPS and the Tacoma Police Department had 

determined that the molestation allegation was unfounded. Codekas did not drop his protection 

order against S.C. until January 2016, and he dropped the order in exchange for Cornell dropping 

her domestic violence protection order against him. Codekas also referenced the molestation 

allegation in his petition for modification in July 2016. 

Furthermore, Codekas was not simply defending against Cornell’s petition for 

modification. Codekas filed a cross petition to modify the parenting plan in July 2016, which 

sought primary custody. At trial, in October 2017, Codekas testified that in as early as April 2017, 

his position had changed and he sought to maintain only split custody. However, Codekas did not 

drop his cross petition seeking primary custody until months later, on the day of trial. 

Codekas’s trial testimony revealed that Codekas had no intention of seeking sole custody, 

confirming that this cross petition to modify the parenting plan was brought in bad faith and for an 

improper purpose. In this context, dropping his petition the day of trial shows “prelitigation 

misconduct,” which suggests Codekas’s motivation for filing his petition was out of spite against 

Cornell. His actions are a true abuse of the justice system. 
No. 51305-6-II

30

The trial court also based its award on Codekas’s lack of credibility, Hutchins-Cook’s 

report, and the GAL report. As stated above, we do not substitute our judgment for the trial court’s 

judgment, weigh the evidence, or evaluate witness credibility. Wilson, 165 Wn. App. at 340. The 

GAL report states that she has “serious concerns” about how Codekas and Low handled the sexual 

assault allegation, and both reports, in addition to the agencies investigating the allegation, found 

that the allegation was unfounded. CP at 33. Still, Codekas dismissed only his sexual assault 

petition against S.C. when Cornell agreed to dismiss her domestic violence protection order against 

Codekas. The trial court did not abuse its discretion by exercising its equitable powers by awarding 

fees based on bad faith pursuant to RCW 26.09.260(13) and CR 11. 

VI. ATTORNEY FEES ON APPEAL

Cornell requests her fees under RAP 18.1 and RCW 26.09.140, arguing that Codekas’s 

appeal was frivolous. Codekas argues that because his appeal is “well-grounded in law and in fact; 

indeed, requiring reversal,” we should deny Cornell’s request for fees on appeal. Reply Br. of 

Appellant at 15. 

RCW 26.09.140 gives appellate courts “discretion to award attorney fees to either party 

based on the parties’ financial resources, balancing the financial need of the requesting party 

against the other party’s ability to pay.” In re Marriage of Pennamen, 135 Wn. App. 790, 807-

08, 146 P.3d 466 (2006). A showing of financial need must be made by affidavit and filed no later 

than 10 days before we are scheduled to consider the appeal. RAP 18.1(c). Cornell has not filed 

an affidavit of need at this time, thus she is not entitled to fees under RAP 18.1(c).

Under RAP 18.1(a), a party on appeal is entitled to attorney fees if a statute authorizes the 

award. RAP 18.9 authorizes an award of compensatory damages against a party who files a 
No. 51305-6-II

31

frivolous appeal. See Kearney v. Kearney, 95 Wn. App. 405, 417, 974 P.2d 872 (1999). An appeal 

is frivolous if there are “‘no debatable issues upon which reasonable minds might differ, and it is 

so totally devoid of merit that there was no reasonable possibility’ of success.” In re Recall of 

Feetham, 149 Wn.2d 860, 872, 72 P.3d 741 (2003) (internal quotation marks omitted) (quoting

Millers Cas. Ins. Co. of Texas v. Briggs, 100 Wn.2d 9, 15, 665 P.2d 887 (1983)). We consider the 

record as a whole and resolve all doubts against finding an appeal frivolous. Delany v. Canning, 

84 Wn. App. 498, 510, 929 P.2d 475 (1997) (quoting Streater v. White, 26 Wn. App. 430, 435, 

613 P.2d 187 (1980)). 

Although the majority of Codekas’s claims lack merit, Codekas’s appeal is not totally 

devoid of merit. Feetham, 149 Wn.2d at 872. Codekas succeeded in striking three findings of fact 

and on the issue of Cornell’s retirement contributions. Therefore, we decline Cornell’s request for 

attorney fees on appeal on this basis. 

Last, RAP 18.1(b) requires a party to devote a section of its opening brief to the request for 

fees and include supporting argument. Cornell’s brief simply states, “Cornell requests her fees on 

the authority of RAP 18.1 and RCW 26.09.140 and that his appeal is frivolous.” Corrected Br. of 

Resp’t at 20. Her brief does not provide any substantive argument why she should be awarded 

fees due to Codekas’s “frivolous appeal.” Because Cornell does not provide us with any 

substantive argument, we deny her request for an award of attorney fees on appeal.

CONCLUSION

We hold that the trial court’s domestic violence finding, and findings of fact 2, 11, 13, 18, 

19, and 31 are supported by substantial evidence on the record. We remand to the trial court to 

correct findings of fact 2, 11, and 13 consistent with this opinion and strike findings of fact 3, 4 
No. 51305-6-II

32

and 32. We further hold that the trial court did not abuse its discretion when finding Codekas’s 

income was “unknown” and imputing his income. We hold that the trial court abused its discretion 

when deducting Cornell’s retirement contributions from her income calculations and instruct the 

trial court to strike Cornell’s contributions and recalculate her income for child support purposes. 

Last, we hold that the trial court did not abuse its discretion when awarding Cornell attorney fees 

and we decline to award Cornell fees and costs on appeal. 

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

CRUSER, J.

We concur:

WORSWICK, P.J.

GLASGOW, J.