### FILED MARCH 19, 2013 In the Office oftheClerk ofCourt W A State CourtofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inre theMarriage of: ) No. 30352-7-111 ) RICHARD TODD WIXOM, ) ) Appellant, ) ) and ) UNPUBLISHED OPINION ) LINDA BUCHHOLZ WIXOM, ) ) Respondent. ) KULIK,

### J.

- AfterRichard ToddWixom and LindaBuchholz Wixom could not agree on a summer schedule for their son, Ms. Wixom asked the courtto setthe schedule. The court did so in a temporary order and included inthe schedule a plannedtrip to visit Ms. Wixom'sparents. 

### Mr. Wixommoved for an order declaring thetemporary order void ab initio. He argued that the orderwas unconstitutional because it createdvisitation rights in nonparents without aproperbasis. The court disagreed and awarded Ms. Wixom attorney fees. On appeal, 

### Mr. Wixom assigns errorto: (1) the conclusionthatthe temporary orderpresented no constitutional issues, (2) the award ofattorney fees, and (3) various rulings inthetemporary order. We conclude thatthe temporary orderis mootNo.30352-7-III In re Marriage ofWixom
and affinn the trial court's order denying Mr. Wixom's motion for declaratory relief. FACTS In 2009, Richard Todd Wixom and Linda Buchholz Wixom agreed to a final parentingplan for their son Jordan.! The plan provided that the father may have residential time with the children up to five weeks in the summer upon givingtwoweeks['] notice to mother. The parents shall exchange a tentative summer schedule by May 

### IS, with the understanding that this schedule is for planningpurposes only, and it is anticipated that further adjustments shall be made tothe schedule. Clerk's Papers (CP) at 2. Both parents filed petitions to modifY the parentingplan in the spring of2011 and trial was set for the fall of2011. In the meantime, a dispute arose about Mr. Wixom's five weeks ofsummerresidential time. Until 2011, Mr. Wixom never exercised the option tohave additional residential time in the summer. On June 21, 2011, Mr. Wixom told Ms. Wixom that he wantedto have five weeks with Jordan. He proposed July 23 to September 5, 2011. Ms. Wixom did not agree to the full five weeks because she had made otherplans. The major scheduling conflict was from August 8 to August 19. Ms. Wixom had arranged for Jordan to visithis grandparents in Portland during that time. According to
!The parentingplan also addresses the Wixoms' two older children, butthere is no 

### 2No.30352-7-II1 In re Marriage ofWixom
Mr. Wixom, Ms. Wixom made those plans after he asked for the five weeks. According to Ms. Wixom, they agreed that Jordan wouldvisit the grandparents while Mr. Wixom
was away on business, but Mr. Wixom kept changing his schedule. Ms. Wixomhad also already made plans for Jordan to meet with the guardian ad litem on July 30, goto a theme park on August 25, and go on a family camping trip during the lastweekend of August. The Wixoms eventually agreed that Jordan would visit Mr. Wixom from July 23 to July 29 and from August 1to August 7 in addition to his regular visits. Ms. Wixomplanned to pickup Jordan at 5:00 p.m. on July 29, 2011. On the morning ofJuly 29, she told Mr. Wixom that she would not be able pickup Jordan until 5:45 p.m. When she got to Mr. Wixom's house, she knocked on the door, but nobody answered. Ms. Wixom was not able to reach either Mr. Wixom or Jordan bytelephone until July 31. Motionfor ExParte Restraining Order On August 1, Ms. Wixom filed a motion for an ex parte restraining order to return Jordan, resolve the summer schedule dispute, and award attorney fees.

dispute about residential time with them. 

### 3No.30352-7-III In re Marriage ofWixom
The court granted the motion to resolve the summer schedule. Itordered that, Jordan's summer schedule shall look like his previous summer schedules prior to litigation where Mr. Wixom did not exercise any extra summer time

. . .. Summer 2011 is modified as follows and the summer schedule in the Final Parenting Plan from 2009 is suspended. Summer 201 I-Jordan shall goto the Portland visit with his grandparents, go to Silverwood 

### w/mom for his birthday, exercise last weekend in August 

### w/mom for camping trip and shall remain 

### w/momthis weekend (Aug. 5-7) as a makeup for last weekend. CP at 53-54. The courtthen addressed attorney fees. Itfound that "Mr. Wixom's behavior on July 29,2011 was unreasonable." CP at 53. Itexplained thatthere were "different ways [the situation] could have been handled verses [sic]
...this secretive sneaky way of taking [Jordan] with you and not calling and not telling [Ms. Wixom]." CP at 85. Motionfor DeclaratoryRelief Mr. Wixom then filed a motion for ajudgment declaring "thecourt's orders issued [A]ugust 5, 2011 to be void ab inito [sic] due to its State and Federal constitutional infirmities and violations." CP at 97. He argued thatthe orderviolated his constitutional liberty interest to parenthis child because it awarded a nonparent visitation overhim. The court denied the motion on September 23. Itexplained that onAugust 5, "[the court] designated the rights between parents, and during mom's time [the court] allowed the child to go on a visit
.... I thinkthat was within the discretion ofthe Court. I don't
4No.30352-7-III In re Marriage ofWixom
think it created rights in the grandparents so I don'tthink there was a constitutional violation." Report ofProceedings (RP) at40-41. It also awarded Ms. Wixom $500 attorney fees pursuantto RCW 7.24.100. Mr. Wixom appeals. ANALYSIS August 

### 5 Order. Mr. Wixom contends thatthe August 5 order contains four errors: (1) modifying the final parenting plan by giving residential time to nonparents, (2) giving Ms. Wixom additional residential time to make up for missing the weekend ofJuly 29, (3) the finding thatMr. Wixom's behavior on July 29, 2011 was unreasonable, and (4) awarding attorney fees to Ms. Wixom. A threshold issue is whetherthis court hasjurisdictionto review the August 5 order. Ms. Wixom contends that it is not reviewable because it is not a final order and Mr. Wixom failed to seek discretionary review ofit. Mr. Wixom responds that it is reviewable because it prejudicially affects the order denyinghis motion for declaratory relief. RAP 2.2(a) provides a list ofappealable orders. The August 5 order does not correspondto any ofthe orders listed. Ifan order is not appealable under RAP 2.2(a), this court may grant discretionary review. RAP 2.3(a). Ifa party seeks discretionary review ofan order, it must designate that order in a notice for qiscretionary review. RAP 2.4(a).
5No. 30352-7-111 In re Marriage ofWixom


### Mr. Wixom did not designate the August 5 order for discretionary review. However, this courtwill review orders orrulings not designated if

### it "prejudicially affects the decision designated in the notice." RAP 2.4(b)(I). An order orruling prejudicially affects the decision designated ifthe designated decision would not have occurred but for the undesignated order. Right-Price Recreation, LLCv. Connells Prairie Cmty. Council, 146 Wn.2d 370, 380,46 P.3d 789 (2002). The order designated for review here is the September 23 order denying Mr. Wixom's motion for declaratory relief. So, for this court to review any ofthe August 5rulings, those rulings must be a basis for the September 23 order. The September 23 orderwould not have occurred but for the ruling setting the
summer schedule. Itis therefore reviewable. The other rulings in the August 5 orderthe finding that Mr. Wixom's behaviorwas unreasonable and that Ms. Wixom was entitled to makeup time and attorney fees-were notthe basis for the designated order. Those rulings are not reviewable. Buteven ifthis court reviewed those rulings, they do notwarrant reversal. The evidence suggested that, onJuly 29, Mr. Wixom made no attempt to arrange Jordan's return or communicate with Ms. Wixom. This evidence supports the court's finding. See Brandliv. Talley, 98 Wn. App. 521,523,991 P.2d 94 (1999) (findings are reviewed for


### 6No.30352-7-II1 In re Marriage of Wixom
substantial evidence). Andthe court actedwell within its discretion when it allocated anotherweekendto Ms. Wixom to make up for the weekend ofJuly 29. See In re Marriage of Luckey, 73 Wn. App. 201, 208,868 P.2d 189 (1994) (issues ofvisitation are reviewed for abuse ofdiscretion). Finally, Mr. Wixom presents no argument regarding the August 5 award ofattorney fees, so we need not consider it. See State v. Johnson, 119 Wn.2d 167,171,829P.2d 1082 (1992); RAP 10.3(a)(6). Becausethe propriety ofthe August 5 order setting the summer schedule and the order denying Mr. Wixom's motion for declaratoryjudgmentpresentthe same issues of law, those issues are addressed togetherbelow. Summer Schedule andDenialo(Motionfpr DeclaratoryRelief Mr. Wixom challenges both theAugust 5 and September 23 orders. He contends thatthe August 5 order violates several constitutional rights, the courtmisconstrued it, and thus the court failed to recognize the order's constitutional violations. He also contends thatthe court shouldhave granted declaratory reliefbecausethe issue wastimely raised andjusticiable,
one appropriately addressed by a declaratoryjudgment. There is no dispute thatthe issue
was timely raised. Theremaining issues are questions oflaw, which we will review de
novo. See Columbia ParkGolf Course, Inc. v. City of Kennewick, 160 Wn. App. 66, 79, 248 P.3d 1067 (2011).
7No.30352-7-III In re Marriage ofWixom Justiciability-Mootness Trial courts will notprovide declaratory reliefunless the claim isjusticiable. Coppernollv. Reed, 155 Wn.2d 290, 300,119 PJd 318 (2005). A claim isjusticiable if there is: "(1)
...an actual, presentandexistingdispute, or the mature seeds of one, as distinguished from apossible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) ajudicial determination ofwhich will be final and conclusive." Id. (emphasis added) (quoting To-Ro Trade Shows v. Collins, 144 Wn.2d 403,411,27 PJd 1149 (2001)). The traditional limiting doctrine ofmootness is inherent in these requirements. To-Ro Trade Shows, 144 Wn.2d at 411. This court will generallynot review issues that are moot. In re Marriage of Horner, 151 Wn.2d 884,891,93 PJd 124 (2004). An issue is moot if"the court can no longer provide effective relief," Brown v. Vail, 169 Wn.2d 318,337,237 PJd 263 (2010); it is rendered purely academic, Grays HarborPaper Co. v. Grays Harbor County, 74 Wn.2d 70, 73, 442 P.2d 967 (1968); there is no longer a controversy between theparties, State ex rei. Chapman v. Superior Court, 15 Wn.2d 637,639-42,131 P.2d 958 (1942); orifa substantial question no longer exists. Sorenson v. City of Bellingham, 80 Wn.2d 547, 558,496P.2d 512 (1972). 8No. 30352·7·III In re Marriage ofWixom
Mr. Wixom contends that the August 5 order setting the summer schedule is not moot because the superior court has empoweredMs. Wixom to deprive Mr. Wixom of visitation in the future. Mr. Wixom perceives that the August 5 order encourages Ms. Wixomto deprive him ofvisitation, butthe ordermerely states, Jordan's summer schedule shall look like his previous summer schedules prior to litigation where Mr. Wixom did not exercise any extra summertime

. . .. Summer 2011 is modified as follows and the summer schedule in the Final Parenting Plan from 2009 is suspended. Summer 20II-Jordan shall go to the Portland visitwith his grandparents, go to Silverwood w/mom for his birthday, exercise last weekend in August w/mom for campingtrip and shallremain w/momthis weekend (Aug. 5·7) as a makeup for last weekend. CP at 53·54. This order created a schedule for the summer of2011 because the parties
were unable to agree on one without court intervention. Because the summer of20 11 has long passed, the issuethe August 5 order addresses is moot now and was moot on September 23,2011, when the trial court denied Mr. Wixom'smotion for a declaratory judgment. Because the issue was moot, thetrial court correctly refused to declarethe August 5 order void ab initio. Given ourconclusion that the August 5 issues are moot, we need only address attorney fees.

9

### No.30352-7-III In re Marriage ofWixom AttorneyFees-Trial Court. 

### An award ofstatutory attorney fees will not be disturbed absent a clear abuse ofdiscretion. Fluke Capital & Mgmt. Servs. 

### v. Richmond, 

### 106 Wn.2d 614,625, 724 P.2d 356 (1986) (quotingMktg. Unlimited, Inc. 

### v. Jefferson Chern. Co., 

### 90 Wn.2d 410,412,583 P.2d 630 (1978), overruledbyScottFetzer Co. 

### v. Weeks, 

### 114 Wn.2d 109, 786 P.2d 265 (1990)). When an erroneous view ofthe law is the basis for a decision, the decision is an abuse ofdiscretion. Dix v. ICTGroup, Inc., 160 

### Wn.2d 826,833, 161 P.3d 1016 (2007). "[T]he court may make such award ofcosts as may seem equitable andjust" in a proceeding for a declaratoryjudgment. RCW 7.24.100. "Costs" allows a party to recover the expense incurred by prosecuting or defending against a suit for declaratoryjudgment. Seattle Sch. Dist. No.1 

### v. State, 

### 90 Wn.2d 476,541,585 P.2d 71 (1978) (quoting Rocky Mountain Fire & Cas. Co. 

### v. Rose, 

### 62 Wn.2d 896, 899-900, 385 P.2d 45 (1963)). It

### does not include "attorneys' fees," except when some other statute is the basis for those fees. Id. 

### The trial court incorrectly awarded $500 in attorney fees to Ms. Wixom pursuantto RCW 7.24.100. To support that award, the court would have to rely on some other statute in addition to RCW 7.24.100. Here, the court relied only on RCW 7.24.100. Ms. Wixom concedes that this was incorrect and asks that this courtreduce the award to "reflectjust
10No.30352-7-II1 

### In re Marriage a/Wixom statutory attorney fees." Br. ofResp't at 15. However, she does notpointto any statute
as a basis for those fees. We reverse the award ofattorney fees. 

### AttorneyFees onAppeal. Both parties ask for attorney fees on appeal under RCW 26.09.140 and due to eachother's intransigence. A party may request attorney fees
on appeal ifapplicable law grants the right to recover attorney fees. RAP 18.1(a). An award ofattorney fees is discretionary. 

### See In re Marriage a/Buchanan, 150 Wn. App. 730, 740, 207 PJd 478 (2009). RCW 26.09.140 provides that the court may order a party to pay the other's attorney fees on appeal "afterconsidering the financial resources ofbothparties." This court may award RCW 26.09.140 attorney fees only ifthe party requesting attorney fees files an affidavit showing his or her financial resources. RAP 18.l(c). Neither party has filed such an affidavit. lfintransigence is established, the parties' financial resources need not be considered. 

### In re Marriage 

## 0/ Mattson, 95 Wn. App. 592, 606, 976 P.2d 157 (1999). A party's intransigence in this court orthe trial court may support an award ofattorney fees
on appeal. 

### Id. Both ofthe parties say that the other is intransigent, butneither cite to anything in the record that demonstrates intransigence.
11No.30352-7-III In re Marriage ofWixom
We affirmthe denial ofdeclaratoryjudgment, reverse the September 23 award of attorney fees, and decline to award attorney fees on appeal. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

# ~/rP_·_ Kulik, J. WE CONCUR:

# ~fat!)= Brown, J. Siddoway, A.C.J.

12