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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

Inthe Matter ofthe Marriage of JENNIFER YONG LUNA, Respondent, and NEAL HAROLD LUNA, 

### Appellant. No. 73354-1-1 DIVISION ONE UNPUBLISHED OPINION
FILED: March 7, 2016 

### Appelwick, J. — The trial court on revision determined that a child's 

### participation in scouting activities was not a majordecision and was not subject to thejoint decision making and disputeresolution provisions of the parenting plan. This was error, but does not warrant reversal. The trial court concluded that 

### scouting was not an agreed activity for purposes of the child supportorder. This

was not an abuse ofdiscretion. We affirm. FACTS 

### JenniferYong Luna and NealLuna were married in February 2004. They had two sons, L.L. and E.L. On September 5, 2013, Jennifer1 filed a petition for 

### dissolution of marriage, alleging that the marriage was irretrievably broken. Prior
1We refer to the parties by theirfirst names forclarity. No disrespect is intended.No. 73354-1/2

to the entry of a divorce decree, on June 2, 2014, the parties agreed on a final parenting plan. Atthe time the parenting plan was entered, L.L. was five and E.L.

was three. Underthe parenting plan, the sons residewith each parentequally. Jennifer has residential time every Tuesday after school until Thursday after school. Neal has residential time every Monday after school until Tuesday after school and every Thursday after school until Friday after school. Jennifer and Neal alternate weekends. Each parent makes decisions regarding the day-to-day care and control of each child while the child is residing with that parent. But, decisions about education, nonemergency health care, religious upbringing, work related 

### day care, and extracurricular activities are to be madejointly. The parenting plan also provides that disputes between the parties, otherthan childsupportdisputes, must be submitted to mediation. And, the plan notes that ifthe court finds that a 

### parent used or frustrated the dispute resolution process without good reason, the court should award attorney fees and financial sanctions to the other parent. 

### Afterthe parenting plan was entered, on June 27, 2014, Jennifer and Neal participated in a settlement conference with King County Superior Court Judge Mariane Spearman. Atthe settlement conference, the parties worked to resolve financial issues. The partieswere successful, andthey signed a CR 2AAgreement 

### (Agreement). TheAgreementmandatedthatJenniferwould pay $1,300.00inchild support per month.No. 73354-1/3
Afterward, counsel for Jennifer and Neal worked on drafting final orders— including the child support order. The parties resolved all but three issues in the final drafting of the orders. One of the drafting issues involved one specific paragraph of the Agreement, "Proportionate Share of Expenses: Neal's proportionate share ofexpenses will be set at 30% and Jennifer's setat70%. This shall include uninsured health care expenses, work-related child care expenses, and agreed activity expenses." 

### On August 27, 2014, counsel for both parties wrote to Judge Spearman. Neat's letter noted that pursuant to the Agreement, Judge Spearman had the 

### authority to arbitrate the disputed issues. Neal urged Judge Spearman to clarify what school and activityexpenses are shared and to include a dispute resolution 

### provisionto providethe parties anefficientmethod forresolving any future disputes over childexpense issues. Neal argued that basic childsupport does not include 

### specialized equipmentfor activities, musical instruments, and the like. He argued that when the parents have agreed that the children will participate in an activity, 

### the associated expenses should be shared as should mandatory school fees. Jennifer's letterasserted thatthe issues were not subjectto arbitration. She 

### argued that the arbitration clause of the Agreement did not permit Neal to add provisions which further obligate her to pay a 70 percent contribution toward expenses never previouslydiscussed. She claimed that each party should pay for 

### the clothing and equipment necessitated by the activity in which they want the children to participate. She noted that if both of them wanted the children toNo. 73354-1/4
participate in a particularactivity, they presumably can also agree upon whatitems the children would need and how the related expenses would be shared. Specifically, she stated, "[A]n agreed-upon sharing of expenses is implicit in the 

### words, 'agreed activity expense' because ifJennifer doesn't want to pay 70% of, for example, a snowboard, helmet, ski jacket etc., she would not agree that the 

### childtake up snowboarding." Finally, she noted thatifJudge Spearmanfound that the outstanding issues were subjectto arbitration, she should adoptthe language ofthe Agreementwithout Neal's proposed modifications. 

### On September3, 2014, Judge Spearman issued a letter ruling. Inthe ruling, 

### Judge Spearman stated that in the Agreement, the parties had agreed that activity 

### expenses would be paid proportionately. But, she noted that the Agreement did not mention the arbitration of disputes over activity expenses or the cost of 

### education expenses. She concluded that because the disputes concerning the payment of required school expenses or the insertion of an arbitration clause are 

### not drafting issues that were encompassed by the Agreement that she would decline to address those issues. Bycontrast, she noted: 

### The payment of clothing and equipment for agreed activities is an issue that was discussed as part ofthe CR2A. It is reasonable that 

### the expenses for clothing and equipmentfor agreed upon activities should be paid by the parents proportionate to their incomes. Children cannotbeexpectedto participate insports or otheractivities 

### without the appropriate clothing and equipment. Ifthe mother does not wish to take on this additional cost, she need not agree to the children's participation inthe activity. 

### Shortly thereafter, on September 17, a divorce decree and a final order of child support were entered. As was agreed upon in the CR 2A Agreement, theNo. 73354-1/5

child supportorder required Jenniferto pay $1,300.00 per month insupport based on her monthly net income of$10,050.66 and Neal's monthly incomeof$4,334.08. The child support order also included a provision for expenses not included inthe $1,300.00. It stated: The petitionershall pay 70% and the respondent 30% (each parent's proportional share of income from the Child Support Schedule Worksheet, line 6) of the following expenses incurred on behalf of [L.L. and E.L.]:

• Work-related child care expenses 

### • Agreed activity expenses and expense for related clothing and equipment (e.g., uniforms, specialized sports equipment and clothing, musical instrument)
• School tuition (for preschool and public school 

### kindergarten and for agreed private school after kindergarten) 

### On May 16, 2014, before eitherthe parenting plan or the child support order
was entered, Jennifer and Neal began discussing L.L.'s potential participation in Cub Scouts. Jennifer had taken L.L. to a Cub Scouts event earlier that week. Jennifercommunicated with a leaderof a local Cub Scouts "pack" and learned that 

### Cub Scouts forL.L. would begin in the fall, meetings would take place on the first 

### Thursday ofeach month, and that L.L. and hisfamily were invited to a barbecue
on a Monday inJune. Jenniferwrote to Neal, 

### Itseems like [L.L.] would like cub scouts. We can register him for the fall and see how he likes it. The meetings are on Thursday 

### evenings so you would have to take him. You will need to ask someone to lookafter [E.L.]. Iwould also like to attend thefunctions as long as you do not mind that Iam there as well.No. 73354-1/6

Months later, on September 3, 2014, the same day that Judge Spearman issued her letter ruling, Jennifere-mailed Neal stating, "Sincethe meetings for cub scouts will be on Thursday nights, it is unfortunate that Iwill not be involved with 

### this activity with [L.L.]. Iwill not agree to this extra-curricular activityexpense." The next day, Neal responded and asked Jennifer to clarify whether she was saying that L.L. could notparticipate in Cub Scouts orthat she would notagree to 

### pay a proportionate share. He asked if she was willing to pay any part of the expenses. He also noted that it is possible that the Cub Scouts meetings could change over time and that there would be activities and other projects which may 

### fall during Jennifer's residential time. After receiving no response to his e-mail, 

### Neal again e-mailed Jennifer on September 9 noting that the first Cub Scouts meeting was coming up that Thursday. That day, Jennifer responded, "[L.L.] can participate in scouting but I will not pay for this extracurricular activity. The 

### meetingswill fall onyour residential time so this is an activity for you and [L.L.] to do together. If an event happens to fall on myresidential time, Iam more than happy to bring himand participate." 

### Notwithstanding Jennifer's refusal to pay a proportionate share of the Cub Scoutsfees, Neal paidL.L.'s CubScouts dues on September25 so that L.L. could 

### participate.2 On September 30, Neal contacted one of the mediators designated in the parenting plan and requested mediation on two issues, including whether Jennifer is required to pay her proportionate share ofexpenses related to Cub 2On October 3, Neal also paid for L.L.'s Cub Scout uniformand necessary supplies.No. 73354-1/7

Scouts. That same day, Neal e-mailed Jennifer and asked her to respond with dates and times that she would be available to participate in mediation. On October 6, Jennifer responded and told Neal that her attorney would handle the issue, but that she was out ofthe country until late October. On October 31, Jennifer's attorney wrote a letter to Neal's attorney regarding the Cub Scouts expenses. The letter stated that Jennifer would not contribute to the expenses Neal incurs for L.L.'s Cub Scouts activities, because Cub Scouts was not an agreed upon activity. Itstated that although prior to the 

### entry of the child support order and before Jenniferwas provided with L.L.'s Cub 

### Scouts schedule (thatmeetings wouldtake place onThursdays such that Jennifer cannot attend), she had agreed that L.L. could attend, she does not agree to pay 

### for costs associated withthe activity. The letter further stated that, because this


### was strictly an issue of payment for L.L.'s extracurricular expenses, under the terms of the childsupportorderand parenting plan, itwas notsubjectto mediation. Neal's attorney responded: 

### Withregardtothe Cub Scoutissue, we clearly have a different interpretation of the orders. The parenting plan makes extracurricular activities a joint decision and provides for mediation 

### for issues subject to jointdecision-making that cannot be resolved. The order of child support requires the parties to share the cost of 

### activities. My understanding [of the] e[-]mail strings between the partiesthatIhave reviewed isthatJenniferhas agreedthat [L.L.] can participate in Cub Scouts. She has even stated that she will 

### participate with [L.L.] in Cub Scout activities that occur during her residential time. Jennifer apparently wants to create a subcategory 

### of "conditionally agreed" activities, where she agrees to the activity 

### onlyifNeal pays. Butthat approach is notconsistentwiththe orders. Either she agrees to [L.L.]'s participation in Cub Scouts, in which case she is obligated to pay her share; or she does not agree with

7No. 73354-1/8
his participation, in which case the issue is subject to dispute resolution (mediation and, ifstill not resolution, a motion to the court). Jennifer's attorney responded and referred to Judge Spearman's letter ruling, and claimed that because this is not an issue of whether L.L. may participate in the activity, but a payment issue underthe child support order, that it is not subjectto mediation. On November 20, Neal paid additional Cub Scouts dues. And, because 

### L.L. was actively participating in Cub Scouts during this period, on November 23, Neal e-mailed Jenniferto ask about a Cub Scouts eventthatwould be taking place
on hertime. He asked Jenniferwhethershewould bewillingto take L.L. to a winter 

### camp that most ofL.L.'s "pack" was going to attend. Neal e-mailed Jennifer again
on December 15 to follow up, because Jennifer had not responded to the e-mail. 

### On December 18, Jennifer responded that she could not discuss the Cub Scouts 

### activity, because Nealwas threatening litigation about it. 

### On January 12, 2015, Neal filed a motion entitled "Amended3 Motion and Declaration for Clarification and Enforcement ofParenting Plan and Child Support 

### Order." The motion: (1) sought clarification of what child activities are subject to 

### joint decision-making and therefore subject to dispute resolution if the parents 

### cannot agree; (2) clarificationthat the parties are required to sharethe expense of joint decision-making child activities, pursuant to dispute resolution, including mediation or motion tothe court; (3)ordersthatL.L. may participate in Cub Scouts,

3 Neal states that he filed an amended motion afterwithdrawing his original 

### motion,because he realized thetiming of his original motion would requireJennifer to respond overthe Christmas holiday.

8No. 73354-1/9

that Jennifer must make her best effort to facilitate L.L.'s participation in Cub Scouts, and that mediation is waived regarding Cub Scouts in light of Jennifer's refusal to participate in mediation and the need for timely resolution; (4) orders 

### requiring Jenniferto pay her proportionate share of Cub Scouts expenses; and (5) orders requiring Jenniferto pay attorney fees and costs. Jennifer submitted a declaration in opposition to Neal's motion. Jennifer 

### argued that Neal failed to distinguish between a "major decision" regarding "extracurricularactivities" underthe parenting plan and "agreed activityexpenses" underthe orderof child support. She noted thatthe issue raised by Neal is a child 

### support dispute, not a parenting plan dispute requiring dispute resolution. And, she claimed that she did not agree to pay for L.L.'s participation in Cub Scouts so 

### itwas not an agreed activityforpurposes of the childsupportorder. She asserted that under the parenting plan, Cub Scouts is neither a major decision nor an 

### extracurricular activity. Finally, she argued that she should be awarded all of her attorney fees and costs pursuantto RCW26.18.160 as the prevailing party. On January 28, 2015, Neal's attorney filed a declaration supporting a 

### request for attorney fees in favor of Neal in the amount of $4,657.98. Similarly, Jennifer's attorney filed a declaration seeking attorney fees on January 29, 2015 inthe approximate amount of$6,536.48. 

### On January 30, 2015, the parties appeared before King County Superior Court Commissioner Bonnie Canada-Thurston on Neal's motion to enforce andNo. 73354-1/10
clarify the parenting plan and the child support order. Commissioner CanadaThurston ruled as follows: (1) Joint decision-making is required for extracurricular activities including Cub Scouts; joint decision-making regarding] activities is not limited by the words "Major Decisions." (2) Whether a child will participate in an extracurricular activity, including Cub Scouts, is subjectto dispute resolution. (3) The mother'sfailure to participate indispute resolution isexcused in this instance because of the confusion related to the last sentence ofJudge Spearman's 9/3/14 letterrulingsofees are not awarded on that basis. 

### (4) The mother did agree to the child's participation in scouting for the 2014-2015 [school year]. She did not recant her agreement. The statement that she is not willing to pay the expense is not 

### permitted bythe intent ofJudge Spearman's letter, the Order of Child Support, or the parenting plan. 

### (5) [L.L.] shall participate in Cub Scouting for the 2014-2015 school year. Both parents shall facilitate his participation. [There is] evidence mother agreed. 

### (6) The parents shall pay their proportionate shares of Cub Scout expenses. The mother shall reimburse the father what is currently owing within 10 days. 

### (7)Jennifer Yong Luna shall pay the father or [thefather's attorney] $1,000 (one thousand dollars) in reasonable attorneys' fees within 10 days ofthis order. 

### On February 6, 2015, Jenniferfiled a motion for revision of Commissioner Canada-Thurston's order. She argued that Cub Scouts is neithera "major" activity nor an "extracurricular" activity rendering it subject to the dispute resolution 

### provisions. As a result, she argued that the commissioner erred in finding that Jennifer's failure to participate in mediation was a violation of the parenting plan.

10No. 73354-1/11

She also asserted that the commissioner erred in finding that she entered into a binding agreement that required her to pay 70 percent of Cub Scouts related expenses and that she did not recant on the "agreement" in her later e-mails and in the correspondence from her attorney to Neal's attorney. She further claimed that the commissioner erred in ruling that an activity can be an "agreed activity" under the order of child support even when there is no agreement as to the 

### payment for the expenses associated withthe activity. She maintained that the commissioner erred when ordering that she pay 70 percent of the Cub Scouts expenses and that she pay $1,000 in attorney fees. 

### The parties then went before Judge Richard Eadie on Jennifer's motion for 

### revision. Judge Eadie granted Jennifer's motion for revision and vacated the 

### commissioner's ruling. The order was simple and contained no explanation for his decision, butJudge Eadie's reasoning was clearfrom his oralruling. Judge Eadie
was unpersuaded by Jennifer's argument that Cub Scouts is not considered an extracurricular activity. But, he adopted Jennifer's proposed definition of"major" and reasonedthatthe word "major" means an activitythataffectsthe child's health, 

### safety or welfare, or significantly affects the other parent's residential time. Following this definition, Judge Eadie reasoned that, unlike an activity such as ski lessons, Cub Scouts does not affect a child's health, safety, orwelfare. He stated 

### that, significantly and critically, Cub Scouts did not significantly affect Jennifer's residential time and itwas strictly on Neal's time. He reasoned, "I don'tthink that this is the kind of activitythat can be subjected to that formal process because it's

11No. 73354-1/12

too much confined to one party or the otherwithout putting the child at risk." And, Judge Eadie noted thatthere was neveran agreementbetween Jenniferand Neal 

### regarding Cub Scouts, because paymentwas an undetermined material term. He declined to award fees to either party. 

### Neal appeals, requesting that this court reverse and reinstate the
commissioner's order. DISCUSSION 

### Neal argues that the trial court erred in revising the commissioner's correct 

### rulings. Heargues that under the terms of the parenting plan, child supportorder, 

### and Judge Spearman's ruling, nooption exists for Jennifer to agree to an activity, but refuse to pay for it. He notes that otherwise Jennifer could pay only for her chosen activities and evade the parties' proportionality agreement in the child support order. When the trial court reviews a commissioner's ruling, it reviews both the 

### commissioner's findings of fact and conclusions of law de novo based upon the evidence and issues presented to the commissioner. RCW 2.24.050; In re Marriage ofFairchild, 148 Wn. App. 828, 831, 207 P.3d 449 (2009). Once the trial court makes a decision on review, the appeal is fromthe trialcourt's decision, not 

### the commissioner's. ]d. Here, the trial court granted Jennifer's motion forrevision and vacated the commissioner's order. In doing so, the trial court interpreted the 

### parenting plan, determinedthat Jenniferdid notagree toallthematerialtermsNeal

12No. 73354-1/13
proposed regarding Cub Scouts, and concluded that no additional child support
was triggered. Interpreting a parenting plan or a child support order is a question of law thatwe review de novo. In re Marriage of Cota, 177 Wn. App. 527, 534, 312 P.3d 695 (2013); Inre Marriage ofKirshenbaum, 84 Wn. App. 798, 803, 929 P.2d 1204 

### (1997) (applying the rules for interpreting a divorce decree to interpreting a 

### parenting plan). Where a decree is ambiguous, a reviewing court must ascertain the intention ofthe court that entered the original decree, using general rules of construction. In re Marriage of Gimlett. 95 Wn.2d 699, 704-05, 629 P.2d 450 

### (1981). Normally, the court is limited to examining the provisions of the decree to resolve issues concerning its intended effect. Jd. Bycontrast, this court reviews a 

### trialcourt's decision regarding childsupportformanifestabuse of discretion. In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). This court will uphold findings of fact supported bysubstantial evidence. Id. 

### Superior courts, inreviewing decisions of courtcommissioners pursuantto RCW 2.24.0504 should entertheir own findings of fact and conclusions of law into 

### the recordifthey reach a differentconclusion than that of the commissioner. In re Estate of Larson, 103 Wn.2d 517, 520 n.1, 694 P.2d 1051 (1985); See In re 

### Dependency ofB.S.S., 56 Wn. App. 169, 170-71, 782 P.2d 1100 (1989). A trial court must make findings of fact and conclusions of law sufficient to suggest the factual basis for its ultimate conclusions. In re Marriage of Lawrence, 105 Wn.

4RCW 2.24.050 is a statute governing revision bythe superior court.

13No. 73354-1/14
App. 683, 686, 20 P.3d 972 (2001). A trial court's failure to enterfindings offact and conclusions of law requires remand to the trial courtfor formal entry ofwritten findings and conclusions unless the record is adequate for review. Just Dirt, Inc., v. Knight Excavating. Inc., 138 Wn. App. 409, 416, 157 P.3d 431 (2007). Here, the trialcourt's oral rulingcontains findings of fact and conclusions of law sufficient for our review. And, neitherparty claims thatthe trial court's failure to enterwritten findings offact and conclusions of law was error. I. Agreed Activity Expenses 

### We first consider the meaning of "agreed activity expenses" in the child 

### support order. The relevantprovision ofthechild support orderstatesthat Jennifer shall pay 70 percentof the expensesfor "[a]greedactivityexpenses and expenses 

### for related clothing and equipment (e.g., uniforms, specialized sports equipment and clothing, musical instrument)" and Neal shall pay 30 percent. 

### Neal argues that because Jennifer agreed to L.L.'s participation in Cub Scouts that Cub Scouts expenses are necessarily "agreed activity expenses" which she needs to pay.5 Neal argues that no optionexists forJenniferto agree 

### to the activity, but refuse to pay for it. By contrast, Jennifer argues that interpretation of this phrase is unnecessary, because factually, the parties either 

### agreed ordid not agree to pay the activity expenses. But, in so arguing, Jennifer implicitly advances her own interpretation of this phrase. She essentially argues


### 5Nealargues that the evidence does not support thetrial court'sfinding that Jennifer never agreed to allowL.L. to participate in Cub Scouts. But, the trial court neverfound that Jenniferdid notagree to allowL.L. to participate in Cub Scouts.

14No. 73354-1/15

thatthe word "agreed" modifies the phrase "activity expense" such that each party must agree to the specific activity expense before he or she is bound to proportionate payment underthe child support order. "Agreed activity expenses" was included inthe parties' CR 2A Agreement. The parties then had the benefit of Judge Spearman's interpretation of "agreed 

### activityexpenses" in her letter rulingbefore they agreed on the final child support order. And, that phrase was later incorporated, unchanged into the child support order. In her letter ruling, it is clear that Judge Spearman interpreted the phrase 

### to mean that the parties were to share payment of expenses for "agreed 

### activities"—not only agreed expenses. There is nothing in the record suggesting 

### that the parties intended to adopt a different meaning of the phrase in their child support order than the meaning Judge Spearman attributed to the phrase in her 

### letterruling. We adopt that meaning. Under the child support order, ifthe activity is an "agreed activity," the expenses are automaticallyshared proportionately. Ifit 

### is not an "agreedactivity," the expenses are notapportioned.6 II. Extracurricular Activities and Agreed Activity 

### Neal also argues that the trial court erred when itreasoned that only "major 

### decisions" regardingextracurricular activities are governed by the parenting plan and are subject tojointdecisionmaking.7 6Anydispute aboutthe amount to be apportioned is resolved by the court under RCW 26.19.080(4), not the dispute resolution provisions of the parenting 

### plan. The court reviews the necessity for orreasonableness of the expense. ]d_, 7 Jennifer argues that whether participation in Cub Scouts is a "major 

### decision" requiring joint decision making is a moot issue, because L.L. has been 

### allowed to participatein Cub Scouts and, therefore, this court is unable to provide

15No. 73354-1/16

Below, the trial court concluded that Cub Scouts is not considered an extracurricular activity subjectto joint decision making or dispute resolution under this provision ofthe parenting plan, because it is not a "major activity" or a "major decision." The trial court reasoned that because most parties cannot afford to mediate every issue, only "major activities" are subject to the provision. The trial courtthen adopted Jennifer's proposed definition oftheword "major" and reasoned thatthe word "major" is an activitythat affects the child's health, safety, welfare, or 

### significantly affects the other parent's residential time. The trial court concluded that because Cub Scouts does not affect L.L.'s health, safety, or welfare, or 

### significantly affect Jennifer's residential time, it did not constitute a major activity
or a major decision. 

### Nealargues that by virtue of the parties including "extracurricularactivities" in the "major decisions" section of the parenting plan, they have identified all extracurricular activity decisions as major decisions requiring joint decision making. We agree. The relevant provision ofthe parenting plan states: 4.2 Major Decisions 

### Major decisions regarding each child shall be made as follows: 

### Neal any relief. AlthoughL.L. has been participating in Cub Scouts, whether Cub Scouts is considered an extracurricular activitysubject to jointdecision making is still relevant to determine whether Jennifer should have agreed to mediate the 

### issue under the parenting plan. Under the parenting plan, an attorney fee award 

### is properifa party frustrates the dispute resolutionprocess. Therefore, this issue is still relevant to determine whether an attorney fee award is proper.

16No. 73354-1/17
Education decisions joint Non-emergency health care joint Religious upbringing joint Work related day care joint ExtracurricularActivities joint (Boldface omitted.) Allocation of decision making under parenting plans is governed by RCW 26.09.184(5): (a) The plan shall allocate decision-making authorityto one or both parties regarding the children's education, health care, and religious upbringing. The parties may incorporate an agreement related to the care and growth ofthe child in these specified areas, or in other areas, into their plan consistent with the criteria in RCW 26.09.187 and 26.09.191. Regardless ofthe allocation of decision making in the parenting plan, either parent may make emergency decisions affecting the health or safety ofthe child. (b) Each parentmay make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.

### (c)When mutual decision making isdesignated butcannotbe achieved, the parties shall make a good-faith effort to resolve the issue through the dispute resolution process. Therefore, RCW 26.09.184(5) recognizes three types of decisions: emergency, 

### day to day, and allocated decisions. Allocation of decision making is done by agreement and may be an allocation to one parent exclusively or to the parents jointly, jd. Allocated decision making controls over day-to-day decision making. Id. Emergency decision making controls over both day-to-day and allocated decision making, jd. The statute mandates that decision making must be allocated with respect to education, health care, and religious upbringing. RCW 26.09.184(5)(a). 

### Decision making may be allocated inother areas as long as the agreementof the

17No. 73354-1/18
parties is consistent with the criteria in RCW 26.09.1878 and RCW 26.09.191.9 Nothing in RCW 26.09.184 limitsthe allocation ofdecision making to only "major" activities or decisions. Nothing restricts the parties' right to allocation to specific items ratherthan broader categories. Although, the parenting plan forms used in family law cases have adopted
a heading entitled "Major Decisions," the heading should not be read as limiting Jenniferand Neal's authority underthe statuteto allocating decision making to only "major" decisions. Jennifer and Neal were (and remain) free to allocate decision making to an extremely finite issue or to a broad category, subject only to the 

### emergency exception and to the limitations outlined in RCW 26.09.187 and RCW 26.09.191. The decision here about extracurricular activities does not implicate the criteria inthose statutes nor does itinvolve an emergency situation. 

### Jennifer and Neal opted, by agreement, to allocate the broad category of "extracurricular activities" for joint decision making, and they did so without 

### limitation.10 They could have limited the allocation of decision making about extracurricularactivities to onlythose activities thatwouldaffectthe residentialtime

8 RCW 26.09.187 outlines the criteria for establishing a permanent parenting plan. 9 RCW 26.09.191 establishes restrictions in temporary and permanent parenting plans. 10Thetrialcourtexpressed concern aboutallextracurricularactivities being 

### subject to formal joint decision making and the dispute resolution process, 

### because, generally, parties do not have the financial means to fight over "these kinds ofissues" inmediation. Costis a practical limitation forthe parties. However, 

### the allocation of decision making to "other areas" is left to the discretion of the 

### parties, not to the discretion of the trial court. The allocation is subject onlyto the limitations in RCW 26.09.187 and RCW 26.09.191.

18No. 73354-1/19

of both parents, butthey did not makethis limitation. Here, eitherparent is entitled to object to an extracurricular activity even if it is to occur solely during the 

### residential time ofthe otherparent.11 Under the plain language of the parenting plan, decisions about extracurricular activities are to be madejointly. Given its ordinary meaning, Cub Scouts clearly fits the definition of "extracurricular activity." Neither parent argues otherwise on appeal. As such, decision making about Cub Scouts is subject to joint decision making. And, a dispute about participation in an extracurricular activity is subject to good faith participation in the designated dispute resolution 

### process.12 RCW26.09.184(4),(5). To the extent the trial court determined that L.L.'s participation in Cub 

### Scouts was not a "major decision," was not subject to joint decision making, and 

### was not subject to dispute resolution under the parenting plan, it committed legal
error. However, this does not resolve whether the trial court correctly concluded that Cub Scouts was not an "agreed activity" underthe child support order.



### 11 That an activityposes a danger is an obvious reason one parent might 

### object to an activity occurring on the other parent's residential time. The variety of potential extracurricular activities is vast and so may be the reasonable bases for objection. Of course, the parties are free to modify their allocation of decision 

### making in the parenting plan subject to the statutory limitations if they find the current scheme unworkable. 12 Jennifer asserts she was not obligated to go to dispute resolution, 

### because the only issue was a monetary child support dispute. If, in fact, she stipulated that Cub Scouts is an "agreed activity" and that the only issue was 

### monetary, she would be correct that dispute resolution was not appropriate. However, itwould also be clearthat she owed additional child support. This would have resulted in reversal ofthe trial court order and an imposition ofattorneyfees. The real question was whether Cub Scouts was an "agreed activity."

19No. 73354-1/20

Jennifer initiallyproposed Cub Scouts to Neal. But, herview evolved when she realized that Cub Scouts would take place on Neal's residential time, that she 

### would not be involved withthe activity, and yetthecostwould still be apportioned.13 The trial court concluded that Jennifer's e-mail was informing Neal that there was
no agreement, because all material terms were not agreed upon, because ofthe activity's schedule and the activity's cost. In this light, we cannot say that the trial court abused its discretion in concluding that the parties had not reached an agreement.14 Therefore, Cub Scouts was not an "agreed activity" for purposes of the child support order. This result may on its face seem irreconcilable with the fact that L.L. is in Cub Scouts and that Jennifer "agrees" that he can be in Cub Scouts on Neal's residential time. However, what Jennifer agreed to is different from an "agreed 

### activity" in which both parents have a voice, participation rights, and financial obligations. As to this activity, Jennifer has waived any objection that she was entitledto raise underthe decision making portion ofthe parenting plan. And, each 

### parent may make decisions regarding the day-to-day care and control of the child

13 The trial court noted that Cub Scouts was to occur strictly on Neal's 

### residential time. Neal argues that there is not substantial evidence inthe record 

### supporting this finding. We need not determine whether there was substantial evidence to support the trial court's finding that Cub Scouts took place strictly on Neal's residential time. It is irrelevantto whetherjoint decision making and dispute 

### resolution weretriggered. And, whetherJennifercorrectly believedthatthe activity was all on Neal's time is not relevant to whether or not she agreed with Neal's proposal. 14 Whether an agreement was reached is a close call. Were we instead reviewing the opposite conclusion, like that reached by the commissioner, we 

### might wellunder our abuse of discretion standard affirm the opposite result.

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when the child is residing with that parent. RCW 26.09.184(5)(b). As a result, Jenniferhas also waived any right to participate inthe activity, buthas no obligation 

### underthe child supportorderforthe related expenses.15 III. Attorney Fees The trial court vacated the commissioner's award of attorney fees to Neal. And, itdeclined to award either party attorney fees on revision. Neal argues that he is entitled to fees below and on appeal pursuant to RCW 26.18.160, the parenting plan, and RAP 18.1. We review the trial court's denial ofattorney fees for abuse of discretion. In re Marriage of Moody, 137 Wn.2d 979, 993-94, 976 P.2d 1240 (1999). RCW 26.18.160 states that in an action to enforce a support order, the 

### prevailing party is entitled to a recovery ofcosts, including an award forreasonable attorney fees. Jenniferis the prevailing party on this issue. Therefore, Neal is not entitled to attorneyfees as the prevailing party below or on appeal. 

### But, Neal also argues that he is entitled to attorneyfees underthe parenting 

### plan. Under the parenting plan, if the court finds that a parent has used or frustrated the dispute resolution process without good reason, the court shall award attorney fees and financial sanctions to the other parent. But, the parties had two different, reasonable understandings about how the parenting plan and 

### the child support order were to be interpreted. The court commissioner and the 

### superior court judge also interpreted the parenting plan and child support order 15 Ofcourse, should Jenniferwantto participate, the parties could revisitthe decision making process.

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differently. We conclude that Jennifer did not frustrate the dispute resolution process without good reason. We, therefore, decline to award Neal fees on this
basis. 

### Jennifer argues that she is entitled to fees on appeal under RAP 18.9(a), because Neal pursued a meritless appeal and sought to mediate a child support 

### dispute even though the parenting plan strictly exempts child support disputes. 

### RAP 18.9(a) authorizes the appellate court, on its own initiative or on motion of a party, to order a party or counsel who files a frivolous appeal to pay terms or 

### compensatory damages. Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009). Appropriatesanctions may include an award of attorneyfees and costs to the opposing party. Jd. 

### Neal's appeal was not meritless orfrivolous. In fact, Neal prevailed on his 

### argumentthat Jennifershould have engaged in disputeresolution. Therefore, we decline to award fees on this basis. We affirm. 

# 'rf*^- WE CONCUR: 

# T>ca<n t^f X^SbuiM>.fg

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