### IN THE COURTOFAPPEALS OFTHE STATE OFWASHINGTON

WENDY KRISTINE CLARK,

Respondent. No. 79424-8-I DIVISION ONE UNPUBLISHED OPINION

ANDRUS, J.

—The trial court denied James Clark’s petition to modify his child support obligation based on a reduction ofemployment hours and income. His appeal is largelyfocused on argumentsthat hefailed to preserveforappeal. To the extent he challenges the merits ofthe court’s decision on his petition to modify, we concludethatthetrial courtdid notabuse its discretion and affirm. FACTS James and Wendy Clark dissolved their marriage in 2011.1 They have two children, whowere 6 and 8years old atthetime ofthe dissolution. Thetrial court entered agreed orders that equally allocated residential time with the children and apportioned the child support obligation according to the standard

1 Some ofthefactual background isderivedfrom thiscourt’s recent unpublished decision resolving James’s appeal of a 2017 order entered earlier in this proceeding. ~ clarkv. clark, No. 77253-8-I (Wash. Ct. App. June 11, 2018) (unpublished) http://www.courts.wa.gov/opinions/pdf/772538.pdf. As in our prior opinion, because the parties sharethe same last name, we refertothem byfirst nameforclarity. In rethe Marriage of JAMESALAN CLARK,

v. Appellant,

FILED: January 13, 2020No. 79424-8-1/2

child support calculation based on each parent’s proportionate share of the combined income.2 Approximately one yearafterthe final orders were entered, James began multiple attempts to reduce his child support obligation, seeking to deviate from the standard child support calculation based on the substantial amount of time the children reside in his household. See RCW 26.19.075(1)(d).3 The court rejected these requests. In 2014, after the court had denied two petitions to reduce support and awarded attorney fees to Wendy in connection with one of those requests, James filed a petition to modify support. He again requested a deviation based
on the shared residential schedule. A court commissioner denied the motion, observing that a deviation for residential credit is discretionary and generally not warranted where there is a significant disparity in the parents’ income. At the hearing on James’s motion, the commissionerexplained: The biggerthe differential in income, the less likelyyou areto geta residential credit, and the reason forthat is because the household that has 50 percent of the time with the lower income is at an economic disadvantage in maintaining the life that these kids have.

2 The record on appeal does not include the final dissolution and child support orders entered in 2011, butJamesdoes notdisputethat he agreedtoan amountofchild supportthatdid notdeviatefrom thestandard calculation.

~ RCW26.19.075(1)(d) provides, in pertinentpart: The court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The court may notdeviate on that basis ifthe deviation will result in insufficient funds in the household receiving thesupportto meetthe basic needs ofthe child orifthe child is receiving temporaryassistanceforneedyfamilies.

. .
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The commissioner denied Wendy’s fee request, but cautioned James that she would “absolutely” award fees if he filed another motion raising the same argument. In 2017, James filed a petition to modifythe parenting plan. This time, he proposed a slight increase in his residential time with the children, along with a reduction of child support. James described his proposal as a “college savings plan,” which would allow him to set aside over $1,000 per month for future postsecondary education expenses. While urging the court to dismiss James’s petition, Wendyalso sought an adjustmentofchild support, because it had been twoyears since entryofthe previous orderofsupportand one ofthe children had moved into a new age bracket. ~ RCW 26.09.170(6)(b) (allowing for adjustment after one year if a child is no longer in the age category upon which the supportobligation is based). A commissioner denied James’s petition, describing it as a “cynical” and transparent attempt to further his own financial interests. The commissioner granted Wendy’s requested adjustment and awarded her attorney fees. The superior court denied James’s motion for revision and awarded additional attorneyfees to Wendy. This court upheld the superiorcourt’s orderon appeal. See Clarkv. Clark, No. 77253-8-I (Wash. Ct. App. June 11, 2018) (unpublished) http://www.courts.wa.gov/opinions/pdf/772538

.pdf. The 2017 child support order required Jamesto make a transfer payment of$2,054 toWendy based on his 72 percent proportional share ofthe combined income. Theorderstates:

3No. 79424-8-1/4 Father has requested [a] residential deviation which has been denied multiple times by the court due to disparity in income between the parties. Downward deviation for post-secondary support is untimelydueto [the] age ofthe children. While James’s appeal was pending, he refused to pay the full amount of child support. As a result, on June 26, 2018, a court commissionerfound James in contempt for failing to comply with the July 2017 support order. The court ordered him to paythe child supportarrearage aswell as attorneyfees and costs ofmorethan $2,500toWendy. On August 1, 2018, James filed the petition at issue in this appeal, seeking to modify child support based on an alleged substantial change of circumstances with respect to his employment and income. ~ RCW26.09.170(5)(a) (“[a] party to an order of child support may petition for a modification based upon a showing of substantially changed circumstances at anytime”). James also asserted thatthe currentsupportorderhad been in place for at least a year and created a “severe economic hardship.” See RCW 26.09.170(6)(a) (supportordermay be modified ifit has been in placeforat least
a year without a showing of substantially changed circumstances if the order creates a“severe economichardship.”). James explained that he had been involuntarily laid off by his employer, Northrop Grumman Corporation (Northrop), on July 26, 2018, and hired by a different company, Engineering Services Network (ESN), the following day. However, James stated thatwhile hewas reemployed atapproximatelythe same hourly rate of pay, his new position at ESN was part-time. Consequently, he claimed his annual salarywas reduced to approximatelyhalfofhis2017 income.

4No. 79424-8-1/5 James stated that his part-time schedule would allow him to restart a consulting business he had operated inthe past. While he predicted that itwould take approximately a year for the new business to become profitable, James opined that developing his own business would ultimately increase his earning potential and said he could “picture roles in the company” for his children in the future. James argued that, as a result of his reduced income, there was no longera substantial disparity between his income and Wendy’s. He believed that it was “long past time” for the court to award a residential credit under RCW26.19.075(1)(d) in light ofthe parties’ equal residential time. Based on his projected new income, James claimed that his monthly child support obligation should be reduced to $1,059. Two months later, James sought a temporary order eliminating his child support transfer payment. He also reiterated his challenges to the 2017 child supportorderthat had been recentlyaffirmed on appeal, including his claimsthat the existing child support order was detrimental to the children because it prevented him from saving fortheirfuture educational expenses and that hewas entitled to a residential creditdeviation. Wendy opposed modification, arguing that James’s decision to accept part-time employment was not a basis to modify the 2017 order. Wendy explained that Northrop, James’s employer for the preceding 13 years, historically issued layoff notices before its defense contract was renewed and then promptly rehired its employees after renewal. Wendy pointed out that James did not say whether he had been offered full-time employment and

5No. 79424-8-1/6

observed that his latest motion represented his sixth attempt since 2011 to reduce child support. James denied that he was voluntarily underemployed. He argued Wendy had no personal knowledge ofthe negotiations surrounding his 2018 layoff and rehiring, but at the same time, he provided no information to verify that he was not offered reemployment with Northrop or that he was not offered full-time employmentatany rate ofpay. Atthe October2018 hearing on his motion, Jamesargued thatthetransfer payment required by the 2017 support order was neither sustainable nor equitable in light of his reduced income. But instead of elaborating on his employment options, James focused on the previously-litigated issue of a deviation based on residential credit. James said that his purpose, “[f]irst and foremost,” was to obtain a residential credit deviation. James claimed that any payment above $1,440, which represented fifty percent ofthe total child support obligation, was “backdoor[J” maintenance. James also informed the commissioner that he had obtained all the credentials to become a “digital forensics expert witness,” and that he expected to substantially increase his income “withinthe nextyear.” The commissionerdenied the motion to modify, concluding there was no substantial change in circumstances to warrant modification of child support. The commissioner noted that James’s requests for a discretionary deviation based on residential credit had been previously denied based on a significant disparity in the parties’ incomes and that, since he planned to workfull-time and

6No. 79424-8-1/7

to expand his salary base 

### in the near future, the disparity was not eliminated. The commissioner denied reconsideration and ordered James to pay Wendy approximately$8,000 in attorneyfees. James filed a motion to revise the commissioner’s ruling. Wendy then filed a motion seeking to declareJames avexatious litigant and to requirethat he post a bond before filing further pleadings seeking affirmative relief. She also requested attorneyfees incurred in responding toJames’s motionto revise. Following a hearing on both motions, thetrial 

### courtdenied James’s motion to revise, based on a de novo reviewofthe record beforethe commissioner, but granted Wendy’s motion to declare James to be a vexatious litigant. The court entered an order placing limitations on James’s ability, forayear, tofile petitions
or motions pertaining to child support. The court denied Wendy’s request for attorneyfees. James appeals from the order denying revision and the order granting Wendy’s motion to preventvexatious litigation.

- ANALYSIS A. ConstitutionalArguments James primarily argues on appeal that he is entitled to a deviation from the standard calculation child support obligation. He claims that the failure to apply a deviation in a case of equally allocated residential time violates several constitutional principles, including substantive and procedural due process and equal protection. He also challenges the constitutionality of the statutory

7No. 79424-8-1/8

provision governing residential credit deviations, RCW 26.19.075(1)(d), insofar
as itdoes not requiredeviations in cases involving a 50/50 residential schedule. But James did not argue below that a residential credit deviation was constitutionally required and did not challenge the constitutionality of RCW26.19.075(1)(d). Under RAP 2.5(a), we generally do not entertain issues not raised in the trial court in order to encourage the efficient use ofjudicial
resources. Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 166 Wn. App. 683, 695, 271 P.3d 925 (2012). RAP 2.5(a)(3) provides an exception tothis rule. To determinewhetherto consider an unpreserved error under RAP 2.5(a)(3), we inquire whether (1) the
erroristrulyofa constitutional magnitude and (2) whetherit is manifest. An error is manifestwhen the asserted error has practical and identifiable consequences in the trial court. Aventis Pharmaceutical, Inc. v. State, 5 Wn. App. 2d 637, 650, 428 P.3d 389 (2018). Manifest error must be “obvious on the record,” and “unmistakable, evident, or indisputable.” State v. O’Hara, 167 Wn.2d 91, 100, 217 P.3d 756 (2009); Statev. Lynn, 67Wn. App. 339, 345, 835 P.2d 251 (1992). James does not allege, much less establish, manifest constitutional error. His contention that RCW 26.19.075(1)(d) is unconstitutional is unsupported and conclusory. He provides no cogent argument or persuasive authority that supports his position that child support allocated in accordance with each parent’s proportionate share ofthe combined income is not narrowlytailored and does not advance a compelling state interest. See In re Custody of Smith, 137Wn.2d 1, 14-15, 969 P.2d 21(1998) (parental autonomy is a fundamental

8No. 79424-8-1/9

liberty interest protected by the Fourteenth Amendment upon which the State may not intrude without a compelling interest and narrowtailoring). Ratherthan addressing the criteria of RAP 2.5(a)(3), James simply explains that he failed to raise the constitutional issues below because “due process arguments concerning errors of law belong in front ofthe appellate court.” Although James raises numerous and extensive constitutional arguments related to a deviation based on the shared residential schedule, he fails to make a plausible showing that the alleged error is manifest. We therefore decline to address James’s constitutional arguments. B. Substantial Change in Circumstances James arguesthe court belowerred in denying his requestto modifychild support based on his alleged substantial change ofcircumstances. Washington courts have statutory and equitable powers to modify support orders. RCW26.09.175; Pip~jins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105 (1988). As a general rule, courts must find a substantial change of circumstances before modifying a support order. RCW 26.09.170(5); Pi~ins, 110Wn.2d 475. 

### “On a revision motion, a trial court reviews a commissioner’s ruling de
novo based on the evidence and issues presented to the commissioner.” In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). “When an appeal is taken from an order denying revision of a court commissioner’s decision, we review the superior court’s decision, not the commissioner’s.” Williams, 156 Wn. App. at 27. We review such an orderfor manifest abuse of

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discretion. In re Marriage ofSchumacher, 100Wn. App. 208, 211, 997 P.2d 399 (2000). A trial court abuses its discretion if its decision is manifestly unreasonable, oris based on untenablegrounds oran erroneousviewofthe law. In re Marriage ofScanlon, 109Wn. App. 167, 174-75, 34 P.3d 877 (2001). James contends that the court “ignored” his changed circumstances and reduced income. He also claims that the court failed to appreciate his need to “prioritize” the children by working less than full-time in order to fulfill his substantial caretaking responsibilities. But the denial of James’s motion does not, in and of itself, suggest that the court failed to consider his new circumstances. The record supports the conclusion that James was likely to experience only atemporary reduction in income and that he had no intention of relying solely on part-time income from ESN. According to James’s financial documents, his reported expenses, excluding child support, significantly exceeded his new income from ESN.4 James conceded that part-time employment was “not a long term option” for him. He admitted it would be appropriate to credit him immediately with additional annual earnings generated by his new business ofbetween $18,000 and $30,000. The court had a basis in the record for rejecting James’s argumentthat his employmentstatuswould lead to asignificant reduction in his income. James also did not establish that his salary reduction was unavoidable. He did not describe any specific efforts to secure full-time employment and did notspecificallysaywhether hewas offered full-time employment, orwhat, ifany,

~According to James’sfinancial declaration submitted in August2018 in conjunction with his petition to modify support, at his new monthly income, his household would operate at a monthlydeficitofapproximately$5,000. 10No. 79424-8-I/il

offer his previous employer made, Instead, he vaguely asserted that the “layoff/rehire processcan be brutal,”thatmanagers he previously reported to had left, that his “program”was “in flux,” and thatthe “overall workload”was reduced. He provided very few details and nothing to substantiate his claim that, by accepting part-time hours, he had “saved hisjob.” James also asserted below that he accepted reduced hours in order to meet the needs of his teenaged children. This assertion, however, is arguably inconsistentwith his historical abilityto workfull-time and manage his parenting responsibilities and his contention that he needs the additional time to develop his own business. The record shows thatthe children have resided with James 50 percentofthetime since 2011, and he apparentlyworked full-time throughout that 7-year period. And his stated intent was to devote his additional available hours, not to his children, but to developing a business. The court did not manifestlyabuse its discretion in finding James’s arguments to be unconvincing. Because the court rejected James’s contention thatthere has been a substantial change in circumstances, itdid notabuse its discretion in rejecting his requestfor
a residential credit. James cites In re Marriage of Payne, 82 Wn. App. 147, 916 P.2d 968 (1996), to argue that the court abused its discretion because his child support obligation is based on prior, not current, earnings. His reliance on Payne is misplaced. Thefather in Payne earned approximately $600 less per month after he moved to Seattle to be closer to his daughter following the mother’s relocation. Payne, 82 Wn. App. at 151. We concluded the trial court did not err

iiNo. 79424-8-1/12

in calculating the father’s child support obligation based on his projected future income in Seattle, ratherthan his priorearnings, because to do otherwise would “unfairly penalize” him for moving. kJ. In those circumstances, we deemed the father’s slightly higher incomefrom a previous position to be irrelevant. Payne is distinguishable because, unlike the case here, the change in income was not associated with probablevoluntary reduced work hours, but a change in location and employer due to the other parent’s relocation.

~ RCW 26.09.170(5)(b) (“An obligor’s voluntary unemployment orvoluntary underemployment, by itself, is notasubstantial change ofcircumstances.”) James also cites Schumacher for the position that full-time employment need notalways amountto40 hours perweek. But unlikethefatherin thatcase, James does not argue, here or below, that less than 40 hours should be considered full-time employment, in viewofhiswork history, education, age, and otherrelevantfactors. See Schumacher, 100Wn. App. at215. Based on the record here, the trial court did not abuse its discretion in denying James’s petition to modifythe child supportorder. C. Vexatious Liticiation Order James also challenges the court’s order placing temporary limitations on his abilityto challengethe orderofchild support. “[A] court may, in its discretion, place reasonable restrictions on any litigant who abuses the judicial process.” See In re Marriacie of Giordano, 57Wn. App. 74, 78, 787 P.2d 51(1990). Here, the courtfound that James had “engaged in a pattern of abusive litigation tactics that constitute vexatious

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litigation regarding child support, particularly the issue of a residential credit.” The court noted thatJames’s “comments at oral argument supportthis finding.”5 The courtdetermined that itwas “appropriateand necessary”to place restrictions
on James’s abilityto file future motions pertaining to child support. Specifically, the orderprohibits Jamesfrom filing any motions regarding child supportwithin a year of the court’s December 11, 2018 order unless he is represented by a licensed attorney, or unless he either (1) posts a $10,000 bond in the superior court registry priorto filing a petition or motion, or (2) obtains priorapproval ofa courtcommissionerbeforefiling a newpetition ormotion.6 James does not challenge the finding that he engaged in “abusive litigation tactics that constitute vexatious litigation,” or otherwise challenge the sufficiency ofthe court’s findings. The only argument he raises with respectto the order is that he cannot be deemed a vexatious litigant because he complied with statutory requirements as to the timing of his June 2017 and August 2018 petitions.

.~ RCW 26.09.170(6), (7). But James provides no authority or reasoned argument to support his position. As a general matter, we decline to address arguments that are unsupported by citation to authority or cogent argument. ~ RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118Wn.2d 801, 809, 828 P.2d 549 (1992). James does not challenge any ofthe specific restrictions or contend that the injunction was overly broad. Yurtis v. Phiprs, 143 Wn. App. 680, 693,

~ The hearing on the motions was apparently not transcribed and a report of the proceeding is not included in the record on appeal.

~ In these proceedings involving his2018 petition, James has represented himselfprose, but itappearsthat hewas represented bycounsel earlierin the litigation. 13No. 79424-8-1/14

181 P.3d 849 (2008) (courts must be careful notto impose overlycomprehensive injunctions that restrict litigation). And he fails to mention critical facts aboutthe scope ofthe order. The orderwas nota moratorium and setforth three separate
means bywhich James could seek relieffrom child support priorto expiration of the order.

.~ Giordano, 57 Wn. App. at 78 (no abuse ofdiscretion where trial court’s order restricting abilityto file motions did not amountto a “total denial of access” to the court). James fails to establish that the court abused its discretion. D. Attorney Fees Wendy requests attorney fees on appeal, citing RAP 18.1, RCW26.09.140, and RAP 18.9 based on her need and James’s ability to pay, principles ofintransigence, and afrivolousappeal. This court has the discretion to award attorney fees on appeal under RAP 18.1(a) ifauthorized byapplicable law. RCW26.09.140 allowsthe appellate court, in its discretion, and based on consideration ofthe “financial resources” of both parties, to ordera partyto paythe attorneyfees ofthe other party in cases governed by chapter 26.09 RCW. The court may also award fees based on conduct that may be characterized as “foot-dragging” or “obstructionist.” MacKenzie v. Barthol, 142 Wn. App. 235, 242, 173 P.3d 980 (2007); Eide v. Eide, I Wn. App. 440, 445, 462 P.2d 562 (1969). And under RAP 18.9, the appellate court may imposefees against a partywhofiles afrivolous appeal. “An appeal isfrivolous ifthe appellate court is convinced thatthe appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in

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meritthatthere is no possibility of reversal.” In re Marriacie of Foley, 84Wn. App. 839, 847, 930 P.2d 929 (1997). We conclude that attorney fees are warranted under RAP 18.9 because James’s appeal lacks merit. He largelyfocused on issues not properly before us, did not assign error to any of the key factual findings, failed to brief in any meaningful waythe basis for reversing the finding that he is a vexatious litigant, and presented no debatable issues for review. We therefore grant Wendy’s requestfor attorney fees and costs under RAP 18.9, subject to her compliance with RAP 18.1. Affirmed.

WE CONCUR: 

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