128 Wn. App. 727, In re Marriage of Holmes

[No. 53822-5-I. Division One. August 8, 2005.]

In the Matter of the Marriage of SALLIE J. HOLMES , Appellant , and JOHN R.H. HOLMES , Respondent .

[1] Divorce - Child Custody - Parenting Plan - Order Affecting - Revision or Clarification - In General. A permanent parenting plan may be changed by agreement, by petition to modify, and by temporary order. In order to modify a parenting plan, the court must find a substantial change in circumstances, even if the modification is minor. A modification occurs when a party's rights are extended beyond or reduced from those originally intended. A clarification is merely a definition of rights already given, and those rights may be completely spelled out if necessary.

[2] Divorce - Child Custody - Parenting Plan - Residence of Child - Suspension by Arbitrator - Validity. In fashioning a parenting plan, a court may vest an arbitrator, such as the child's guardian ad litem, with the authority to suspend residential time with a parent so long as the parents have a right of court review.

[3] Divorce - Child Custody - Parenting Plan - Visitation Rights - Suspension by Arbitration - Scope - Begin and End Times. An arbitrator's authority under a parenting plan to recommend the suspension of residential time with a parent on a temporary basis necessarily encompasses both the time when the residential time should begin and when it should end.[4] Divorce - Child Custody - Parenting Plan - Dispute Resolution Procedure - Recommended Resolution of Arbitrator - Incorporation in Parenting Plan - Effect. Where a permanent parenting plan grants to the child's guardian ad litem the authority to arbitrate disputes between the parents over provisions of the plan and to make recommendations that must be followed until resolution by a court, a court does not exceed its lawful authority or effect a modification of the plan by ratifying, in a temporary order, a residential schedule change recommended by the guardian ad litem, incorporating the temporary order in the parenting plan, and reaffirming that under the parenting plan the

728 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

guardian ad litem may recommend when to reinstate the original residential provisions. The fact that the court's temporary order is included in the permanent parenting plan does not change the nature of the decision itself and does not constitute a modification of the residential schedule. The anticipated later recommendation by the guardian ad litem, or a future failure by the guardian ad litem to execute this duty, remains subject to the dispute resolution provision of the parenting plan, including the provision for judicial review.

[5] Divorce - Child Support - Modification - Review - Standard of Review. An order modifying a child support obligation is reviewed for an abuse of discretion.

[6] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Definitional Statute - Effect. RCW 26.19.011 (9), which defines "support transfer payment" as "the amount of money the court orders one parent to pay to another parent or custodian for child support after determination of the standard calculation and deviations," does not direct which parent is to make the payment. ( In re Marriage of Casey , 88 Wn. App. 662 (1997) is rejected insofar as it is inconsistent.)

[7] Divorce - Child Support - Child Support Schedule - Presumptive Obligation - Statutory Provisions - Applicability. RCW 26.19.020 governs the calculation of a presumptive child support obligation, not RCW 26.19.075 , when there are no reasons for deviating from the standard child support schedule.

[8] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Deviation Statute - Effect. RCW 26.19.075 , which establishes standards for deviating from a standard child support calculation, does not require parents to make payments to each other and does not assume that the parent with the greater presumptive support obligation will be responsible for a net transfer payment to the other parent. RCW 26.19.075 (2) merely affirms that, absent a basis for deviation, each parent will pay the amount of the standard calculation to the other, if that parent is obliged to make a transfer payment. The function of RCW 26.19.075 (2) is to preclude a deviation from being granted unless (1) the parties have fully disclosed their resources and (2) the court enters specific reasons for the deviation.

[9] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Child Support Worksheets - Effect. The child support worksheets required by RCW 26.19.050 and appended to chapter 26.19 RCW provide for calculation of a basic child support obligation and a presumptive transfer payment for each parent but do not provide for the calculation of a net support transfer payment.

Aug. 2005 In re Marriage of Holmes 729
128 Wn. App. 727

[10] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Statutory Provisions - In General. Chapter 26.19 RCW governs the method of calculating child support, and chapter 26.09 RCW governs which parent is obliged to make payment to the other.

[11] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Historical Presumption - In General. The Parenting Act of 1987, as codified in chapter 26.09 RCW, does not change the historical presumption that the parent with whom a child resides a majority of the time satisfies his or her support obligation by providing for the child while in his or her home and that a child support transfer payment is made by the other parent (unless the other parent is financially unable to do so). In those situations where the child resides a majority of the time with one parent, the parent with the child support transfer payment obligation typically is the one with whom the child does not reside a majority of the time.

[12] Divorce - Child Support - Transfer Payment - Obligor Parent - Determination - Historical Presumption - Deviation - Finding of Need - Necessity. A deviation from the standard support calculation that would require the parent with whom the child resides a majority of the time to make a child support transfer payment to the other parent with whom the child does not reside a majority of the time must be based on a finding that the other parent lacks an income adequate to meet the needs of the child while living in that parent's household. The basis for the deviation is the child's need for greater support while in the other parent's household. A significant difference in the parents' respective incomes is not a sufficient basis, alone, to justify the deviation.

[13] Divorce - Child Support - Child Support Schedule - Income Exceeding Schedule - Higher Support Obligation - Extrapolated Obligation - Absence of Transfer Obligation - Effect. A court is not required to extrapolate above the top end of the child support economic table to determine a child support transfer payment obligation by a parent with great wealth and a high income if the parent does not have a child support transfer payment obligation.

[14] Divorce - Child Support - Modification - Effective Date - Review. A trial court has the discretion to make a modified child support obligation effective on the date the petition to modify was filed, on the date the modification order is entered, or on any date in between. The court's decision will not be disturbed absent an abuse of discretion.

[15] Divorce - Attorney Fees - On Appeal - Financial Affidavit - Necessity. A party to a divorce-related proceeding will not be awarded attorney fees on appeal under RCW 26.09.140 if the party fails to file an affidavit of financial need as required by RAP 18.1(c).

730 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

Nature of Action: A father with whom his child now resided a majority of the time moved for clarification of the parenting plan that was entered in conjunction with the dissolution decree and petitioned for modification of his child support obligation in order to eliminate his transfer payment to the mother.

Superior Court: The Superior Court for King County, No. 93-3-01794-8, Richard A. Gallaher and Stephen Gaddis, JJ. Pro Tem., on January 20 and February 12, 2004, entered a new parenting plan and an order terminating the father's obligation to pay child support to the mother.

Court of Appeals: Holding that the trial court did not improperly modify the parenting plan by granting to the child's guardian ad litem the authority to resinstate a suspended portion of the child's residential schedule where such authority is subject to court review and that the trial court did not abuse its discretion by terminating the father's obligation to pay child support to the mother, the court affirms the new parenting plan and modification order.

Robert E. Prince (of Prince Law Firm, P.S. ) and Glenn E. MacGilvra , for appellant.

Catherine W. Smith and Valerie A. Villacin (of Edwards, Sieh, Smith & Goodfriend, P.S. ) and Mabry C. DeBuys (of Preston Gates & Ellis, L.L.P. ), for respondent.

¶1 APPELWICK, J. - Sallie Holmes appeals from separate trial court decisions entering a parenting plan and modifying child support. A provision in the parenting plan granting the guardian ad litem (GAL) authority to determine when to reinstate the original return time in the residential schedule was a proper temporary order and not a modifica

Aug. 2005 In re Marriage of Holmes 731
128 Wn. App. 727

tion of the parenting plan. In addition, because the child now resides with the father a majority of the time, the trial court did not abuse its discretion in terminating the father's support payment. Nor did the court err in refusing to order the father to pay child support to the mother based on the father's enormous wealth. Accordingly, we affirm both decisions.

FACTS

1. 2002 Parenting Plan

¶2 Sallie Holmes and John Holmes were married on June 24, 1989, and dissolved their marriage on May 20, 1994. A child support order and parenting plan were entered. The couple's son Jack, who was born on December 4, 1990, initially resided with Sallie a majority of the time. The parenting plan was modified several times, including appointment of a guardian ad litem.

¶3 In September 2000, Sallie was hospitalized following a mental breakdown. As a result, Jack went to live with his father a majority of the time. On January 23, 2002, the parties entered into an agreed parenting plan (the 2002 Parenting Plan) that incorporated the change in the residential schedule, as well as other agreed changes.

¶4 The plan specified that Jack's weekend residential time with Sallie during the school year would last "until return to school on Monday morning (or return to the father at 9:00 a.m. if school is not in session due to an unscheduled event)." The plan further provided that the residential schedule "shall be subject to review and periodic recommendation by the GAL" and established the following method for dispute resolution:

Disputes between the parties regarding this Parenting Plan shall be discussed with Jack's therapist and with the Guardian ad Litem . . . . The Guardian ad Litem shall consult with Jack's therapist and then make a recommendation to the parents as to the solution that is in Jack's best interests. If the parents are unable to agree, the Guardian ad Litem's recommendation shall be followed until resolution by the court.

732 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

2. Temporary Amendment to the 2002 Parenting Plan

¶5 After entry of the 2002 Parenting Plan, a dispute arose about Sallie's alleged disruption of Jack's therapy sessions. The GAL eventually recommended that because of the potential risk to Jack, Sallie's residential time should be reduced and supervised. Sallie rejected the recommendation, and John filed a petition to modify the parenting plan. The trial court found that the 2002 Parenting Plan provided a mechanism for dealing with the dispute, based on the GAL's recommendation, that obviated the need for a modification hearing.

¶6 On December 10, 2002, the court entered a Temporary Amendment to the 2002 Parenting Plan that suspended Sallie's residential placement, pending further recommendation by the GAL or a court order. The GAL was directed to identify a therapeutic visitation supervisor for any further residential time and given authority to increase or decrease Jack's residential time with Sallie, subject to court review. Sallie did not seek review of the trial court's rulings.

3. 2004 Parenting Plan

¶7 In November 2003, John filed a Motion for Clarification of the Parenting Plan, alleging, among other things, that Sallie had been attempting to redefine the residential schedule to increase her residential time in a manner inconsistent with the parenting plan. A dispute also arose over Sallie's actions in keeping Jack at her home when he was ill on Monday mornings, rather than sending him to school or returning him to John. Following a series of warnings, the GAL temporarily suspended Jack's weekend residential time with Sallie, but then reinstated it, provided that Jack be returned to John on Sunday evening rather than on Monday morning.

¶8 The trial court directed the parties to discuss all remaining disagreements with the GAL, who was to make recommendations. For purposes of this appeal, the parties resolved all but one of the outstanding issues, and the trial

Aug. 2005 In re Marriage of Holmes 733
128 Wn. App. 727

court entered a parenting plan on January 20, 2004 (the 2004 Parenting Plan), which by its terms superseded the 2002 Temporary Amendment.

¶9 The 2004 Parenting Plan included the same dispute resolution mechanism as the 2002 Parenting Plan, as well as the same provision authorizing the GAL to review the residential schedule and recommend changes. In resolving the parties' dispute about Jack's weekend return time, the court crossed out the father's proposed language, reinstated the original Monday return time, and then added the language underlined below to Section 3.2:

The mother shall have residential time with the child every other Friday from after school (or 4:00 p.m. if school is not in session due to early dismissal or an unscheduled event) until return to school on Monday morning (or return to the father at 9:00 a.m. if school is not in session due to an unscheduled event). The GAL has recommended, pursuant to her authority in this Section III (see p 2, line 15), that the child be returned to the father at 7:00 p.m. on Sunday, and this return time shall remain in effect until there is a further written recommendation by the GAL to change the return time.

4. Child Support

¶10 After Jack began to reside a majority of the time with his father in September 2000, John continued to pay child support in the amount of $8,500 per month. In December 2002, at John's request, the court ordered that he make all future payments for private school tuition and expenses directly to the providers and subtract the amount from the child support transfer payment.

¶11 In August 2003, John filed a petition to modify child support by terminating his transfer payment. Among other things, he alleged that Sallie was providing an excessively indulgent lifestyle and that his child support payments were being used to fund disruptive litigation.

¶12 The trial court concluded that there had been a substantial change of circumstances since the 1994 support order because Jack now resided with his father a majority

734 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

of the time and Jack had also moved into a different age bracket. The court terminated the child support John had been paying. Among other things, the court found that John had assets of $125 million, with a net income of more than $620,000 per month; Sallie had net assets of approximately $1 million, including her home and stock investments, with a current passive monthly income of $2,051. The court also found that Sallie was voluntarily unemployed and imputed income of $2,051 per month, for a total monthly income of about $4,000.

¶13 The court ruled that each parent should be responsible for Jack's expenses when he resided with them. The order provides that John is to pay Jack's entire private school costs, including tuition, books, lunch, and field trips, Jack's medical costs, agreed summer camps and extracurricular activity costs, and post-secondary school expenses. The trial court found that John's expenses for Jack are $2,460 per month, of which $1,438 is for private school tuition and $386 for health costs.

¶14 On appeal, Sallie contends that the authority granted to the GAL to reinstate the suspended portion of the residential schedule is an improper modification of the parenting plan. She also challenges the termination of child support payments.

DECISION

1. Parenting Plan

[1]¶15 A permanent parenting plan may be changed by agreement, by petition to modify, and by temporary order. In re Marriage of Christel, 101 Wn. App. 13 , 22, 1 P.3d 600 (2000). In order to modify a parenting plan, the court must find a "substantial change in circumstances," even if the modification is minor. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798 , 807, 929 P.2d 1204 (1997); RCW 26.09.260 (1), (4). A "modification" occurs "when a party's rights are either extended beyond or reduced from those originally intended." Christel, 101 Wn. App. at 22 . A "clarification" is

Aug. 2005 In re Marriage of Holmes 735
128 Wn. App. 727

"merely a definition of the rights which have already been given and those rights may be completely spelled out if necessary." Christel, 101 Wn. App. at 22 (quoting Rivard v. Rivard, 75 Wn.2d 415 , 418, 451 P.2d 677 (1969)).

¶16 In this case, after a series of disputes over the residential schedule, John filed a motion for "clarification." But the parties then entered into extensive negotiations that resulted in a series of agreed substantive changes, as well as clarifications. These agreed changes were then incorporated into the 2004 Parenting Plan and are not in dispute. The sole remaining dispute involves the trial court's resolution of the GAL's recommendation that Jack be returned on Sunday evening rather than Monday morning.

¶17 Sallie contends the trial court erred by modifying the parenting plan in the guise of "clarification." She concedes that under the terms of the 2002 Parenting Plan, the GAL was authorized to resolve parental disputes by initiating a temporary change in the residential schedule "until resolution by the court." But she maintains that the trial court's addition to Section 3.2 of the 2004 Parenting Plan, which provides that the GAL's recommended change would remain in effect "until there is a further written recommendation by the GAL to change the return time," improperly authorized the GAL to permanently suspend her Sunday evening residential time and effectively modified the parenting plan without satisfying the requirements of RCW 26.09.260 .

¶18 John proposed language for the 2004 Parenting Plan that would have made the Sunday return time a permanent part of the residential schedule. But the trial court deleted the proposed change and reinserted the original provision, which specifies a Monday morning return time. At the same time, the court adopted the recommendation of the GAL that Jack's residential time with Sallie temporarily end on Sunday evening.

[2-4]¶19 The court may vest in an arbitrator the authority to suspend residential time so long as the parties

736 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

have the right of court review. Kirshenbaum, 84 Wn. App. at 807 . Here, the GAL served as the arbitrator. The authority to recommend suspensions on a temporary basis necessarily encompasses both the time when they should begin and when they should end. Here, the court reviewed the recommendation of the GAL to suspend the weekend residential return time, ratified that recommendation in a temporary order, incorporated that temporary order in the revised parenting plan, and reaffirmed that under the parenting plan the GAL could recommend when to reinstate the original return time. The fact that the court's temporary order was included in the permanent parenting plan does not change the nature of the decision itself and does not constitute a modification of the residential schedule. The anticipated later recommendation by the GAL, or a future failure by the GAL to execute this duty, remained subject to the dispute resolution provision of the parenting plan, which provides for judicial review. The court did not exceed its lawful authority and did not modify the parenting plan.

2. Child Support

¶20 Sallie next contends that the trial court erred in terminating John's child support obligation. The crux of her argument is that the parent with the larger income is statutorily presumed to make the child support transfer payment and that John has the larger income. She also claims that the trial court abused its discretion when it failed to sufficiently consider the parties' "lifestyle" and combined high income before refusing to impose an increased child support obligation. She maintains that the trial court should order John to make a child support transfer payment that takes into account these factors.

[5]¶21 We review an order modifying child support for an abuse of discretion. In re Marriage of Griffin, 114 Wn.2d 772 , 776, 791 P.2d 519 (1990).

[6]¶22 Sallie relies on In re Marriage of Casey, 88 Wn. App. 662 , 665, 967 P.2d 982 (1997), for the proposition that John should make a child support transfer payment to her

Aug. 2005 In re Marriage of Holmes 737
128 Wn. App. 727

despite the fact that Jack resides a majority of time with John. The court there stated:

RCW 26.09.100 (1) requires the trial court, after considering "all relevant factors," to order either or both parents to pay child support in an amount determined under RCW 26.19. The trial court calculates the total amount of child support, allocates the basic support obligation between the parents "based on each parent's share of the combined monthly net income," RCW 26.19.080 (1), then orders the parent with the greater obligation to pay the other a "support transfer payment." RCW 26.19.011 (9).

Id.

¶23 However, the portion of this quotation stating "the trial court . . . then orders the parent with the greater obligation to pay the other a 'support transfer payment' " is erroneous. RCW 26.19.011 (9) defines "support transfer payment" as "the amount of money the court orders one parent to pay to another parent or custodian for child support after determination of the standard calculation and deviations." But this subsection does not direct which parent is to make the payment.«1»

[7, 8]¶24 Sallie further contends that even though both parents have support obligations under the statute, RCW 26.19.075 (2) requires the court to order each parent "to pay the amount of support determined by using the standard calculation." She reasons that one parent or the other will have a greater obligation based on proportional income, making him or her presumptively responsible for the net support transfer payment before any consideration of reasons to deviate.

¶25 This argument is erroneous. RCW 26.19.075 establishes the standards for deviations from the standard calculation. But unless the court finds reasons for a deviation, RCW 26.19.020 , not RCW 26.19.075 , governs calculation of the presumptive support obligation. The function of

«1»Fortunately, this error in Casey does not affect the correctness of the balance of its analysis or holding.

738 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

RCW 26.19.075 (2) is to preclude a deviation from being granted unless (1) the parties have fully disclosed their resources and (2) the court enters specific reasons for the deviation. Nothing in RCW 26.19.075 requires that each parent make a payment to the other or assumes that the parent with the greater presumptive support obligation will be responsible for a net transfer payment. Instead, RCW 26.19.075 (2) merely affirms that absent a basis for deviation, each parent will pay the amount of the standard calculation to the other, if that parent is obligated to make a transfer payment.

[9]¶26 Our reading of RCW 26.19.075 is supported by the child support worksheets themselves, which are required by RCW 26.19.050 and appended to chapter 26.19 RCW. The child support worksheets provide for calculation of a basic child support obligation and a presumptive transfer payment for each parent, but do not provide for the calculation of a net support transfer payment. The legislature has not taken issue with the worksheets' interpretation of the substantive provision of the statute in the nearly 15 years the worksheets have been used to implement the statute. Cf. Carnation Co., v. Hill, 115 Wn.2d 184 , 189, 796 P.2d 416 (1990) (effect of failure of legislature to amend statutory language in face of long-standing court interpretation). Nor would we expect the legislature to do so.

[10]¶27 Child support payments have historically been the obligation of the noncustodial parent. It has been within the province of the superior court to determine which parent would be custodial, which would pay child support, and how much would be paid. The historical presumption was reflected in the Uniform Child Support Guidelines, which were approved in 1982 by the Washington State Association of Superior Court Judges (ASCJ). Under the ASCJ Guidelines, "the support to be paid by the noncustodial parent is that fraction of the scheduled amount in the proportion that the parent's income bears to the total income of both parents." Washington State Child Support Commission, Final Report, November 1, 1987, at 6.

Aug. 2005 In re Marriage of Holmes 739
128 Wn. App. 727

The obligation of the custodial parent was satisfied by providing for the child in that parent's home, as evidenced by the fact that the custodial parent received a support payment and did not make one. These guidelines were replaced by the child support guidelines as adopted by the Washington Child Support Commission and as subsequently enacted by the legislature as chapter 26.19 RCW. This chapter focuses on the method of calculation of child support, not on which parent would make payment to the other. The latter determination is made under chapter 26.09 RCW.

[11]¶28 As part of the Parenting Act, LAWS OF 1987, ch. 460, the legislature removed the concepts of custody and visitation from the dissolution statute, chapter 26.09 RCW. In their place the legislature imposed the general requirement of a parenting plan for the child that establishes a residential schedule, allocates decision-making authority between the parents with respect to the child, and creates a dispute resolution mechanism for the implementation of the plan. RCW 26.09.184 (2); See In re Marriage of Kovacs, 121 Wn.2d 795 , 801, 854 P.2d 629 (1993). RCW 26.09.100(1), as amended, vested the superior court with authority to "order either or both parents . . . to pay [child support] in an amount determined under chapter 26.19 RCW." However, the legislature did not change the historical presumption in practice that the parent with whom the child resided a majority of the time would satisfy the support obligation by providing for the child while in his or her home and that the other parent would make a child support transfer payment. As this court recently noted,

[i]n those situations [where children reside a majority of the time with one parent], the obligor parent is the one with whom the children do not reside a majority of the time and that parent makes a transfer payment to the parent with whom the children primarily reside.

State ex rel. M.M.G. v. Graham, 123 Wn. App. 931 , 939, 99 P.3d 1248 (2004).

740 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

¶29 It is undisputed that the 2004 Parenting Plan provides that Jack resides a majority of the time with John. Sallie would therefore be the presumptive child support obligor making a presumptive support payment to John

¶30 This presumption is not without exception, however. Casey does establish an exception to the presumption that the child support transfer payment is made to the parent with whom the child resides a majority of the time. This exception is created by deviation based upon a finding that the income of the parent with whom the child does not reside a majority of the time is insufficient to provide for the basic needs of the child. In Casey, the father and the children moved to Texas, while the mother remained in Washington. The mother's monthly income was approximately $500, and she had a learning disability that limited her earning capacity. Paying child support would have reduced her income below the poverty level, causing substantial hardship. The father, with whom the children resided a majority of the time, had income of approximately $5,848 per month. Casey, 88 Wn. App. at 665 .

[12]¶31 In addition to suspending the mother's obligation to make a child support transfer payment, the court in Casey ordered the father to pay all transportation expenses for residential transfers and to make a $1,500 per month support payment to the mother for the summer months when the children resided with her. Consequently, a deviation from the standard support calculation was properly based upon the mother's lack of income adequate to meet the needs of the children while living in the mother's household. See Casey, 88 Wn. App. at 667 ; see also In re Yeamans, 117 Wn. App. 593 , 601, 72 P.3d 775 (2003) (Casey exception permits court to deviate from proportional allocation of extraordinary expenses under RCW 29.19.080 (3) only if it first deviates from basic support obligation).

¶32 Sallie's situation is not comparable factually. It is undisputed that Sallie's income is $2,051 per month and could be increased to $4,000 per month if she worked. She also has net assets of approximately $1 million. John was

Aug. 2005 In re Marriage of Holmes 741
128 Wn. App. 727

found to have assets of $125 million and monthly net income of over $620,000. Although the disparity in incomes is even greater here than in Casey, the relevant issue is whether a deviation should be granted. This requires a showing of need by Jack for greater support while in his mother's home, not merely a significant difference in income of the parents.

¶33 The trial court made a number of findings about the lifestyles, expenditures, and needs of the parties. Most significantly, the trial court found the mother has sufficient money on her own to pay for the immediate expenses of Jack while he is with her, without any financial assistance from John. These findings of fact are supported by substantial evidence. The trial court did not abuse its discretion by concluding that no basis existed to deviate and to order John to pay a child support transfer payment to her for basic support of Jack.

[13]¶34 Sallie further argues for extrapolation beyond the economic table in setting support for Jack based on John's wealth and high income. However, since she has not established a need to deviate from the basic support schedule sufficient to justify that a child support transfer payment be made to her, she cannot establish the need for additional support based on extrapolation for combined net incomes above those contained in the economic table. See In re Marriage of Daubert, 124 Wn. App. 483 , 496, 99 P.3d 401 (2004). The trial court did not abuse its discretion by denying her request.

[14]¶35 Sallie next contends the trial court erred when it made the child support modification effective on the date of the filing of the petition for modification, requiring her to refund $31,000. The trial court has discretion to make the modification effective on the filing date of the petition, the date of the order, or at any time in between. In re Marriage of Pollard, 99 Wn. App. 48 , 55, 991 P.2d 1201 (2000). Sallie asserts that the funds were "used for mother's household expenses, including funds directly for Jack's benefit." But these conclusory assertions are not supported by any cita

742 In re Marriage of Holmes Aug. 2005
128 Wn. App. 727

tion to the record. Sallie has therefore failed to demonstrate any abuse of discretion in the effective date. See Pollard, 99 Wn. App. at 56 .

[15]¶36 Finally, Sallie requests an award of attorney fees on appeal, based on her need and John's ability to pay. But she has failed to file an affidavit as required by RAP 18.1(c). Accordingly, the request is denied.

¶37 Affirmed.

COLEMAN and AGID , JJ., concur. No. 53386-0-I. Division One. April 18, 2005.]

NANCY CUMMINGS , as Personal Representative , Appellant , v. GUARDIANSHIP SERVICES OF SEATTLE , et AL ., Respondents .

[1] Negligence - Abuse of Vulnerable Adults - Right of Action - Statutory Provisions - Purposes. The abuse of vulnerable adults act, chapter 74.34 RCW, was enacted to provide protection and legal remedies to vulnerable adults who are dependent on others for their care.

[2] Negligence - Abuse of Vulnerable Adults - Action for Damages - Entities Subject to Liability - Organization Required To Be Licensed as In-Home Care Service Agency - In General. An organization or an individual employed by an organization may be subject to liability for personal or financial injury to a vulnerable adult living in the community under RCW 74.34.200 (1) of the abuse of vulnerable adults act if the organization is required to be licensed as an in-home services agency under RCW 70.127.020 .[3] Negligence - Abuse of Vulnerable Adults - Action for Damages - Entities Subject to Liability - Organization Required To Be Licensed as In-Home Care Service Agency - Guardianship Service Agency. A company or organization that provides guardianship services for a ward and that also provides the ward with in-home care services, including housekeeping, the purchasing of groceries, and the preparation of meals, is required to be licensed under RCW 70.127.020 as a person or agency providing home care services as defined under RCW 70.127.010 and may be liable for personal or financial injury to the ward under RCW 74.34.200 (1) of

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 743
128 Wn. App. 742

the abuse of vulnerable adults act. Nothing in the guardianship statutes or the in-home services agencies act (chapter 70.127 RCW) exempts court-appointed guardians that provide in-home care services to their wards from the licensing requirement of the in-home services agencies act.

[4] Licenses - In-Home Service Agencies - Statutory Provisions - Purposes. The in-home services agencies act, chapter 70.127 RCW, was enacted to protect the ill, disabled, and elderly who need assistance with personal care. The legislature was concerned about the virtual invisibility of home care providers and the attendant risks to their vulnerable clients. The legislature addressed this problem by establishing minimum standards for care and by requiring that home care agencies serving these vulnerable populations be licensed to ensure compliance with the standards.

[5] Negligence - Abuse of Vulnerable Adults - Right of Action - Survival of Action - Scope - Limitation. Under RCW 74.34.210, a claim under the abuse of vulnerable adults act (chapter 74.34 RCW) survives only to a spouse, a child or children, or other heirs set forth in chapter 4.20 RCW, regardless of the type of damages sought. Under the statutory scheme, a niece or nephew does not have standing to claim under the abuse of vulnerable adults act, even for purely economic damages.

[6] Judgment - Res Judicata - Reserved Claim - Effect. A final decision or order made in a judicial proceeding is not res judicata as to a claim raised in the proceeding if the claim was plainly reserved from adjudication by the judicial agency.

[7] Judgment - Collateral Estoppel - Reserved Issue - Effect. A final decision or order made in a judicial proceeding does not collaterally estop relitigation of an issue raised in the proceeding if the issue was plainly reserved from adjudication by the judicial agency.

[8] Fiduciaries - What Constitutes - In General. A fiduciary is a person with a duty to act primarily for the benefit of another.

[9] Guardians - Fiduciary Duty - In General. A guardian owes a fiduciary duty to the ward.

[10] Fiduciaries - Fiduciary Duty - Breach - Question of Law or Fact. Whether a fiduciary duty has been breached generally is a question of fact.

[11] Fiduciaries - Fiduciary Relationship - Live-In Caregiver and Client - Performance of Caregiving Tasks. A fiduciary relationship is not established between a live-in caregiver and a client by virtue of the caregiver's performance of caregiving tasks such as dressing the client, cooking, and housekeeping.

744 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

[12] Wills - Attorney and Client - Malpractice - Personal Representative's Attorney - Duty - Beneficiaries of Estate. The beneficiaries of a testamentary estate are not owed a duty of loyalty by an attorney for the personal representative in performing an act carrying out the testator's intent as expressed in the will if the act is not one intended to benefit the estate beneficiaries.

[13] Civil Rights - Deprivation - Elements - In General. A cause of action under 42 U.S.C. § 1983 for deprivation of civil rights is not established unless a federal constitutional or statutory right has been violated by a person acting under color of state law.

[14] Civil Rights - Deprivation - Color of Law - Act of Private Person. Merely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983. A private person or entity acts under color of state law for purposes of 42 U.S.C. § 1983 only if the person or entity willfully participates in joint action with a state agency.

[15] Civil Rights - Deprivation - Color of Law - Guardian - Acting Under Court Order or Supervision. A guardian does not act under color of state law for purposes of an action for deprivation of civil rights under 42 U.S.C. § 1983 merely because the act is made under court supervision or pursuant to a court order if the court's role is that of routine judicial oversight of a guardianship and does not involve joint action with the guardian.

Nature of Action: The personal representative of a decedent's estate sought damages from the decedent's co-guardians, the guardians' attorney, and the decedent's two live-in caretakers for breach of fiduciary duty, neglect of a vulnerable adult, violation of the Consumer Protection Act, violation of a lawyer's duty to a ward, and deprivation of the federal civil rights of a ward. The decedent, who was the subject of a guardianship and had live-in caretakers, died after falling from the window of her third floor condominium.

Superior Court: After entering a summary judgment dismissing all of the claims except for claims against one of the guardians and one of the live-in caretakers for economic damages to the estate under the survival of actions statute, the Superior Court for King County, No. 01-2-18599-3, Terence Lukins, J., on October 20, 2003, entered a judgment enforcing a settlement of the remaining claims.Court of Appeals: Holding that the plaintiff's claims under the abuse of vulnerable adults act do not survive to

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 745
128 Wn. App. 742

the decedent's nieces and nephews, that the breach of fiduciary duty claims against the co-guardians were not barred by res judicata or collateral estoppel, that a fiduciary relationship did not exist between the in-home caregivers and the decedent, that the guardians' attorney did not owe a duty of loyalty to the estate beneficiaries in fulfilling testamentary instructions regarding the appointment of the personal representative for the estate, and that none of the defendants acted under color of state law for purposes of the civil rights claims, the court affirms the judgments in part, reverses the judgments in part, and remands the case for further proceedings.

Douglas A. Schafer (of Schafer Law Firm ), for appellant.

Clarence C. Jones (of Law Offices of Matthew Williams ), for respondents.

[As amended by order of the Court of Appeals September 13, 2005.]

<</noticeofamendment>¶1 ELLINGTON, J. - Pauline Rae Smith was the subject of a guardianship and had live-in caretakers. She died after falling from the window of her third floor condominium. The questions raised here include whether a claim for economic damages under the abuse of vulnerable adults act«1»survives where there are no statutory heirs; whether actions lie for breach of fiduciary duty, and if so, against whom and for what remedies; whether a guardian acts under color of state law for purposes of the federal Civil Rights Act;«2»and

«1»Ch. 74.34 RCW.

«2»42 U.S.C. § 1983.

746 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

whether a claim under the Consumer Protection Act«3»survives to the benefit of the estate.

¶2 Nancy Cummings, in her capacity as personal representative of Pauline Smith's estate,«4»brought this action against Smith's co-guardians (Guardianship Services of Seattle and Richard Watkins); the guardians' attorney (Susan Howle); and Smith's two live-in caregivers (Gwen Saucedo and Joyce Sambataro). Cummings claims included breach of fiduciary duty, violation of the Consumer Protection Act, violation of the abuse of vulnerable adults act, and violation of Smith's constitutional rights under the federal Civil Rights Act. The trial court dismissed all claims on summary judgment, except for claims against Guardianship Services of Seattle and Sambataro for economic damages to the estate.«5»After settlement discussions stalled, the court ordered enforcement of a settlement on those claims.

¶3 The Estate appeals the orders granting summary judgment, the order enforcing the settlement agreement, and also seeks remand on grounds that no record was made of argument at the summary judgment hearings.

FACTS

¶4 In June 1999, Pauline Rae Smith was 93 years old and suffered from Alzheimer's disease. She had been a widow for 20 years and had no children or surviving siblings or parents. Under a guardianship established in King County, Guardianship Services of Seattle (GSS) and her long-time attorney, Richard Watkins, acted as co-guardians of her person; GSS acted as sole guardian of her estate. Smith was cared for by two live-in caregivers employed by GSS, Gwen Saucedo and Joyce Sambataro. Saucedo worked four days per week; Sambataro worked three.

«3»Ch. 19.86 RCW.

«4»We refer to appellant as Cummings or the Estate.

«5»The basis for these damages is discussed infra , note 6.

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 747
128 Wn. App. 742

¶5 Smith was prone to waking at night and to wandering. Her caregivers had moved her into the living room where they could sleep at the foot of her bed, which was near a tall window. On the night of her death, the window was left slightly ajar for ventilation. At 4:30 in the morning on June 7, 1999, Sambataro discovered Smith on the ground below the window. Smith died of her injuries later that day.

¶6 In accordance with the terms of her will, Watkins was appointed personal representative of Smith's estate. The following month, in August 1999, GSS and Watkins submitted their final report as guardians. In response to family concerns about possible negligence in the circumstances surrounding Smith's death, the court appointed a guardian ad litem (GAL) to review the report and make recommendations. The GAL recommended that the court approve the financial accounting, but leave the guardianship open and not exonerate the bond. Because potential claims against him gave Watkins a conflict of interest, the GAL recommended that a new personal representative be appointed and be authorized to investigate a potential suit for damages.

¶7 At a hearing in December 1999, the court appointed a successor personal representative, approved Watkins' final report as personal representative, approved his actions and fees, discharged him, and appointed a successor. The court also approved the guardians' report, except as to the circumstances of Smith's death. The court discharged the guardians, terminated the guardianship, and authorized final expenses and payment of fees to GSS and the guardians' attorney, Susan Howle. The court expressly preserved any actions against the guardians arising out of Smith's death.

¶8 Nancy Cummings was later appointed as successor personal representative of the estate, and on July 3, 2003, she filed an amended complaint asserting five causes of action: (1) breach of fiduciary duty, against GSS, Watkins, Saucedo and Sambataro; (2) neglect of a vulnerable adult,

748 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

against GSS, Saucedo and Sambataro; (3) violation of the Consumer Protection Act (CPA), against GSS; (4) violation of a lawyer's duty to a ward, against Howle; and (5) deprivation of federal civil rights of a ward against Watkins, GSS, Saucedo and Sambataro.

¶9 These claims were dismissed on motions for summary judgment, except for claims against GSS and Sambataro for economic damages under RCW 4.20.046 .«6»The court did not directly address the breach of fiduciary duty claims against GSS and Sambataro because of its belief that those claims had been withdrawn.

¶10 In July 2003, the remaining parties engaged in settlement discussions agreed as to the amount of actual damages and agreed to leave open the Estate's right to appeal the summary judgment. The Estate's attorney signed a draft agreement and sent it to Cummings for signature, but Sambataro's attorney circulated a further draft with significant amendments, which Cummings' attorney did not sign. GSS and Sambataro sought an order enforcing the settlement, which the court granted in October 2003.

¶11 The Estate appeals.

DISCUSSION

¶12 We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.«7»All facts and reasonable inferences must be considered in the

«6»The court appears to have believed that while the substantive claims were dismissed, nonetheless noneconomic damages could be recovered under the general survival statute.

«7» Folsom v. Burger King , 135 Wn.2d 658 , 663, 958 P.2d 301 (1998).

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 749
128 Wn. App. 742

light most favorable to the nonmoving party.«8»We review questions of law de novo.«9»

Abuse of Vulnerable Adults Act

[1, 2]¶13 The abuse of vulnerable adults act, chapter 74.34 RCW, was enacted in 1995 to provide protection and legal remedies to vulnerable adults living in the community but dependent on others for their care. The version of the statute in effect at the time of Smith's death was not materially different from the current statute, which states:

In addition to the other remedies available under the law, a vulnerable adult who has been subjected to abandonment, abuse, financial exploitation, or neglect . . . in the case of a person residing at home who receives care from a home health, hospice, or home care agency, . . . shall have a cause of action for damages on account of his or her injuries, pain and suffering, and loss of property sustained thereby. This action shall be available where the defendant is or was a corporation, trust . . . employee, [or] agent . . . of a . . . home care agency licensed or required to be licensed under chapter 70.127 RCW. «10»

Thus the statute applies where the defendant is an organization (or an individual employed by an organization) required to be licensed as an in-home service agency under RCW 70.127.020 .«11»The threshold inquiry is whether the activities of the service provider are those that require a license under chapter 70.127 RCW.

¶14 Licensing Requirement . The trial court ruled the abuse of vulnerable adults act does not apply to GSS because GSS is not required to be licensed as an in-home

«8» Mountain Park Homeowners Ass'n v. Tydings , 125 Wn.2d 337 , 341, 883 P.2d 1383 (1994).

«9» Mains Farm Homeowners Ass'n v. Worthington , 121 Wn.2d 810 , 813, 854 P.2d 1072 (1993).

«10»RCW 74.34.200 (1) (emphasis added).

«11»RCW 74.34.200 ; RCW 70.127.020 (2) (in-home services agency license required for a nursing home, hospital, or other person functioning as a home health, hospice, hospice care center, or home care agency).

750 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

service agency. The court observed that the statutes regulating guardianship, chapters 11.88 and 11.92 RCW, do not require guardians to be licensed when providing residential care.

[3, 4]¶15 We disagree with this analysis. The guardianship statutes impose a duty on a court appointed guardian to "care for and maintain" the ward in the setting least restrictive to the incapacitated person.«12»This will often involve arranging for the ward to receive home care services. But the guardianship statutes do not purport to override the licensing requirements for in-home service providers.

¶16 Chapter 70.127 RCW was enacted in 1988 to protect the ill, disabled and elderly who need assistance with personal care.«13»The legislature was concerned about the virtual invisibility of home care providers, and the attendant risks to their vulnerable clients.«14»The legislature addressed this problem by establishing minimum standards for care«15»and by requiring that home care agencies serving these vulnerable populations be licensed to ensure compliance with these standards.

¶17 The legislature thought carefully about exemptions from licensing requirements, and identified 17 such exemp

«12»RCW 11.92.043 (4).

«13»LAWS OF 1988, ch. 245, § 1.

«14»RCW 70.127.005 provides:

The legislature finds that the availability of home health, hospice, and home care services has improved the quality of life for Washington's citizens. However, the delivery of these services brings risks because the in-home location of services makes their actual delivery virtually invisible. . . . The fact that these services are delivered to the state's most vulnerable population, the ill or disabled who are frequently also elderly, adds to these risks.

It is the intent of the legislature to protect the citizens of Washington state by licensing home health, hospice, and home care agencies.

«15»RCW 70.127.080 (establishing requirements for on-site surveys, professional and public liability coverage and criminal background checks); RCW 70.127.120 (establishing standards for recordkeeping, volunteer policies and complaint handling).

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 751
128 Wn. App. 742

tions. Court appointed guardians are not exempt.«16»In many circumstances, guardians will not be subject to the licensing requirements because they do not themselves provide home care. Rather, they arrange for the ward to receive care from home service agencies. GSS, however, is both a professional guardianship entity and a provider of home care services. Cummings contends GSS is required to be licensed. Cummings is correct.

¶18 RCW 70.127.010 requires that a home care agency must be licensed, and sets forth the following definitions:

(5) "Home care agency" means a person administering or providing home care services directly or through a contract arrangement to individuals in places of temporary or permanent residence. . . .

(6) "Home care services" means nonmedical services and assistance provided to ill, disabled, or vulnerable individuals that enable them to remain in their residences. Home care services include . . . [p]ersonal care such as assistance with dressing, feeding and personal hygiene to facilitate self-care; . . . housekeeping, shopping, meal planning and preparation . . . .

. . . .

(15) "Person" means any individual, business, firm, partnership, corporation, company, association, . . . public or private agency or organization . . . that employs or contracts with two or more individuals.

¶19 GSS employs individuals who, like Saucedo and Sambataro, provide home care services to clients.«17»

«16»RCW 70.127.040 .

«17»After this court's opinion was filed herein, GSS sought reconsideration of our ruling that GSS is subject to licensing as a home health care agency. Contrary to its representations in briefing to this court, GSS now alleges that it does not in fact employ caregivers and did not employ Saucedo or Sambataro. (GSS states its representations resulted from misunderstanding and inadvertence.) GSS contends that but for this error, it could not be subject to the licensing requirement, because case managers who provide no direct care are exempt under RCW 70.127.040 (14). As Cummings points out in reply, however, the record is replete with references to Saucedo and Sambataro as employees of GSS. Further, the licensing statute applies not only to employers of caregivers, but to those who provide services directly or "through a contract arrangement." RCW 70.127.010 (5). To the extent GSS believes the licensing requirements are unduly burdensome and are needless, given the guardianship statutes, GSS should direct its argument to the legislature.

752 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

Saucedo and Sambataro lived in Smith's home and provided round-the-clock services, including housekeeping, purchasing groceries, and preparing meals. These activities are home care services. GSS is therefore a home care agency required to be licensed under chapter 70.127 RCW.«18»

¶20 The court erred in dismissing the Estate's claims under the abuse of vulnerable adults act on grounds GSS was not required to be licensed as a home care agency. As employees of a home care agency requiring a license, Sambataro and Saucedo are also subject to liability under the act.«19»

¶21 Survival of Claims . The abuse of vulnerable adults act contains its own provision to preserve any claim after the death of a vulnerable adult: "[T]he right to initiate or maintain the action shall be transferred to the executor or administrator of the deceased, for the benefit of the surviving spouse, child or children, or other heirs set forth in chapter 4.20 RCW. "«20»

¶22 Relying upon our decision in Schumacher v. Williams ,«21»Respondents argue that where a death occurs, claims under the abuse of vulnerable adults act survive only if there are statutory beneficiaries listed in chapter 4.20 RCW. In Schumacher , however, the claims were for general damages, whereas here the Estate seeks only economic damages.

«18»At oral argument, GSS asserted that the abuse of vulnerable adults act does not apply to nonprofit entities. This argument finds no support in the statute.

«19»Sambataro argues that as an individual she is not subject to regulation and therefore has no liability under the abuse of vulnerable adults act under the terms of RCW 70.127.040 . But that statute merely provides that an employee of an already licensed agency need not be separately licensed. The abuse of vulnerable adults act specifically authorizes an action against employees whose employer is required to be licensed. RCW 74.34.200 .

«20»RCW 74.34.210 (emphasis added).

«21»107 Wn. App. 793 , 28 P.3d 792 (2001).

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 753
128 Wn. App. 742

[5]¶23 Cummings contends the abuse of vulnerable adults act claim for economic damages survives to the estate. This would be a sensible approach, given the legislative objective. But regardless of the type of damages sought, where a death occurs, the statute plainly limits recovery to the heirs set forth in the general survival statute, chapter 4.20 RCW.«22»These are spouses, children, stepchildren, and dependent parents and siblings.«23»Because Smith's closest surviving relatives are nephews and nieces, she has no statutory heirs. Cummings therefore has no standing under the abuse of vulnerable adults act, and her claims fail.

¶24 This is another unfortunate consequence of linking the abuse of vulnerable adults act in lockstep with the survival statutes. The act is intended to protect frail elders.«24»But those who have no close family members (and therefore no statutory heirs) are those most likely to suffer the harm the statute aims to address. Further, where the negligence of a home care agency results in death, there seems no logical reason to deny recovery of economic damages, such as medical bills.«25»Certainly economic damages would be recoverable were the general survival statute controlling.«26»The effect of the provision, therefore, is that those without statutory heirs may be neglected with impunity so long as the result is death. Once again, we hope the legislature will resolve this discord.«27»Under the present statute, however, dismissal of these claims was required.

«22»RCW 74.34.210 .

«23»RCW 4.20.020 .

«24» Schumacher , 107 Wn. App. at 800 (quoting H.B. REP . SSB 5889, 54th Leg., 1st Spec. Sess. (Wash. 1995)).

«25»In 2003, Washington State Adult Protective Services investigated over 6,000 reports of abuse against vulnerable persons over age 60 living in the community. Available at http://www.aasa.dshs.wa.gov/topics/abuse/documents/200320APS20statistics.doc (last visited Feb. 25, 2005).

«26»RCW 4.20.046 .

«27» See Schumacher , 107 Wn. App. at 805 (Ellington J., concurring); Tait v. Wahl , 97 Wn. App. 765 , 775, 987 P.2d 127 (1999) (Ellington J., concurring).

754 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

Breach of Fiduciary Duty

¶25 The Estate alleges breach of fiduciary duty on the part of GSS, Watkins, the guardians' attorney Howle, and caregivers Saucedo and Sambataro, and seeks the economic remedy of disgorgement of fees. Respondents contend this remedy is barred by the doctrines of res judicata and/or collateral estoppel, because the guardianship was terminated, the fees in question were approved, and no appeal or other challenge was taken.

[6, 7]¶26 While no Washington court has directly applied the doctrine of res judicata to a final guardianship order, it does apply to probate orders.«28»For purposes of our discussion, we assume the doctrine may apply.«29»It does not, however, apply here.

¶27 Res judicata bars relitigation when an issue has been definitively adjudicated; it does not apply where a plaintiff's right to recover damages is "plainly reserved from adjudication."«30»Concerns about the manner of Smith's death were brought to the attention of the court at the time of the final accounting in the guardianship. Based upon the arguments of the parties and the recommendation of the GAL, the court expressly reserved the issue of the circumstances of Smith's death. The order approving the guardians' report and terminating the guardianship states:

(1) The annual report and final report, but for the issue of the circumstances of Pauline Rae Smith's death , are approved as proper. The guardians have discharged their trust with relation to the accounting, receipts, and expenditure, and investments;

(2) The guardianship of the person and estate of Pauline Rae Smith is terminated;

«28» Bostock v. Brown , 198 Wash. 288 , 292, 88 P.2d 445 (1939).

«29» See RCW 11.92.053 (the order settling the guardianship account "shall be final and binding upon the incapacitated person").

«30» Case v. Knight , 129 Wash. 570 , 574, 225 P. 645 (1924).

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 755
128 Wn. App. 742

(3) Except as stated in Paragraph 1, and except as to any actions against them which are preserved, the guardians are discharged along with their agents, including the firm of Thompson & Howle.«31»

¶28 The guardianship court thus expressly reserved issues relating to Smith's death from its adjudication, and preserved "any actions" against the guardians. The fees approved were for their acts as guardians. Claims for breach of fiduciary duty are thus not barred by res judicata.«32»

[8-10]¶29 The co-guardians owed a fiduciary duty to Smith.«33»The Estate contends GSS breached this duty by providing negligent care. This is a question of fact not yet developed below. The trial court erred in dismissing the claims against GSS.

¶30 The Estate's claim against Watkins is less clear. Cummings alleges he breached his fiduciary duty by appearing "not to have faithfully fulfilled his duties as Smith's co-guardian."«34»In essence, she contends he should have more effectively supervised and monitored the care provided by co-guardian GSS.«35»In his motion for summary judgment below, however, Watkins argued only that Cummings' claims were barred because res judicata and collateral estoppel barred the remedy of disgorgement of fees, and since Smith had no statutory beneficiaries, her

«31»Clerk's Papers at 488-89 (emphasis added).

«32»For the same reasons, collateral estoppel does not apply. See Shoemaker v. City of Bremerton , 109 Wn.2d 504 , 508, 745 P.2d 858 (1987); Hanson v. City of Snohomish , 121 Wn.2d 552 , 561, 852 P.2d 295 (1993).

«33»" 'A fiduciary is a person with a duty to act primarily for the benefit of another.' " Guarino v. Interactive Objects , 122 Wn. App. 95 , 128, 86 P.3d 1175 (2004) (quoting Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc. , 86 Wn. App. 732 , 741-42, 935 P.2d 628 (1997)).

«34»Appellant's Br. at 27.

«35»Watkins had been Smith's attorney since 1984, and was apparently the only person who took an interest in Smith as she aged. He sought assistance from her family when her health declined and she needed a guardian. Family members were unable or unwilling to step in, so Watkins did as his client asked, and became co-guardian. He visited her regularly until she no longer recognized him and his visits caused her anxiety. It is unclear exactly what malfeasance or misfeasance is alleged against him.

756 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

estate could claim no other damages. As discussed above, these arguments fail. Given the arguments made, the court erred in dismissing Cummings' claim against Watkins.

[11]¶31 As to Saucedo and Sambataro, however, the Estate points to no evidence of a fiduciary relationship. Performance of caregiving tasks such as dressing a client, cooking, and housekeeping does not establish a fiduciary relationship.«36»The claims against Sambataro and Saucedo for breach of fiduciary duty were properly dismissed.

¶32 Susan Howle and her law firm, Thompson and Howle, represented Watkins and GSS in connection with Smith's guardianship. The Estate claims Howle breached her duty of loyalty to the beneficiaries of Smith's estate by enabling Watkins "to secure his appointment as personal representative of the estate knowing full well that his occupancy of that post prevented an independent person from being able to begin scrutinizing the circumstances of Smith's death."«37»

[12]¶33 In Trask v. Butler ,«38»the Washington Supreme Court considered whether an attorney hired by the personal representative of an estate owes a duty of care to an estate beneficiary, and devised a six-part balancing test. Applying that test in Hetzel v. Parks ,«39»we held an intent to benefit the beneficiaries«40»is a threshold requirement.«41»

¶34 Watkins was named in Smith's will as her personal representative. Howle's act in presenting the court with the

«36» In re Estate of Esala , 16 Wn. App. 764 , 767, 559 P.2d 592 (1977) (involvement in deceased's business and financial affairs sufficient to establish fiduciary relationship); Doty v. Anderson , 17 Wn. App. 464 , 468, 563 P.2d 1307 (1977) (same); Kolze v. Fordtran , 412 Ill. 461, 107 N.E.2d 686, 690 (1952) (caretaking assistance during decedent's illness not enough to establish a fiduciary relationship); McGlaughlin v. Pickerel , 381 Ill. 574, 46 N.E.2d 368, 373 (1943) (same).

«37»Appellant's Br. at 23.

«38»123 Wn.2d 835 , 872 P.2d 1080 (1994).

«39»93 Wn. App. 929 , 971 P.2d 115 (1999).

«40»Although Cummings is Smith's personal representative, this argument claims a breach of loyalty to the estate beneficiaries, so the estate beneficiaries are the plaintiffs for purposes of the Trask analysis.

«41» Hetzel , 93 Wn. App. at 936 .

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 757
128 Wn. App. 742

appointment papers carried out the intent of the deceased; it was not an act intended to benefit the heirs.«42»Cummings complains that Howle should have informed the court of Watkins' potential conflict of interest. In fact, in the petition seeking to admit the will to probate and obtain Watkins' appointment as personal representative, Howle alerted the court to the possible conflict in the first paragraph: "Questions could potentially be raised regarding the manner or circumstances of the death of [Smith]. . . . Such questions could potentially give rise to a conflict of interest. . . . The court should determine if the nominated personal representative should be appointed given this potential conflict."«43»Once the GAL recommended that Watkins be replaced as personal representative, neither Howle nor Watkins objected, and Howle prepared the necessary papers.

¶35 Nothing in Howle's actions suggests the existence of any duty to the estate beneficiaries, or that any conceivable duty was breached. The court did not err in dismissing claims against Howle and her law firm.

42 U.S.C. § 1983 Claims

¶36 Cummings asserted claims against GSS, Saucedo, Sambataro, and Watkins under 42 U.S.C. § 1983«44»for failing to protect Smith from deadly harm.«45»The court

«42»Cummings' reliance on In re Disciplinary Proceeding Against Vetter , 104 Wn.2d 779 , 711 P.2d 284 (1985), In re Estate of Larson , 103 Wn.2d 517 , 694 P.2d 1051 (1985), and In re Disciplinary Proceeding Against Fraser , 83 Wn.2d 884 , 523 P.2d 921 (1974) for the proposition that a lawyer owes an actionable duty of loyalty to a nonclient is unavailing. Trask supercedes these lawyer discipline cases, and expressly dismisses Vetter and Larson for failing to apply the balancing test. Trask , 123 Wn.2d at 845 .

«43»Clerk's Papers at 449.

«44»42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, [or] regulation . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

«45»Cummings relies chiefly on Braam v. State , 150 Wn.2d 689 , 81 P.3d 851 (2003), where the court held that children in foster care have a substantive due process right to be free from unreasonable risk of harm. We do not address whether such an analysis could provide the foundation for a 42 U.S.C. § 1983 claim, because we hold that GSS and Watkins were not state actors for purposes of section 1983.

758 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

dismissed these claims, ruling that the defendants were not acting under color of state law. This ruling was correct.

[13, 14]¶37 The elements of a section 1983 claim are a deprivation of constitutional rights, resulting from acts occurring "under color of state law."«46»Merely private conduct, no matter how wrongful, is excluded from the reach of section 1983.«47»A private actor may, however, act under color of state law for purposes of section 1983 if he or she willfully participates in joint action with the state or its agents.«48»Cummings contends the court-ordered guardianship provides the necessary state action.

[15]¶38 No Washington court has directly addressed this issue, but the Ninth Circuit has held that a guardian acting pursuant to a court order is not acting under color of state law. In Taylor v. First Wyoming Bank, N.A. ,«49»a guardian obtained a court order placing the ward in a convalescent hospital. The ward brought a section 1983 claim against the guardian for deprivation of liberty. The court stated:

Here the state is not responsible for the care of the mother and is not providing for her care. The mother is in no sense a ward or responsibility of the state. The guardian, in the performance of her duties, was not participating in joint action with the state or acting for the state or serving a public function. Her actions did not constitute the exercise of power traditionally associated with sovereignty or reserved to the state.«50»

«46» Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999).

«47» Id . at 50.

«48» Kuehn v. Renton Sch. Dist. No. 403 , 103 Wn.2d 594 , 602, 694 P.2d 1078 (1985).

«49»707 F.2d 388 (9th Cir. 1983).

«50» Id . at 390.

Apr. 2005 Cummings v. Guardianship Servs. of Seattle 759
128 Wn. App. 742

We agree. A guardian is not a state actor merely because he or she is acting under court supervision or pursuant to a court order.

¶39 Cummings points to Thomas S. v. Morrow «51»and In re Guardianship of L.W. ,«52»but her reliance is misplaced. In Morrow , the defendant guardian was an adult mental health specialist employed by the North Carolina department of human resources. It appears he was appointed because of his employment. As guardian, he worked closely with state agencies to secure the ward's residential placement and treatment regimen, which was the subject of the section 1983 claim. In L.W ., the court confronted the narrow question of the ability of a court-appointed guardian to refuse life sustaining treatment for the ward.«53»

¶40 By contrast, Cummings points only to the court's "close and ongoing supervision of the co-guardians."«54»But the court did not engage in joint action with the guardians. Its role was limited to that of routine judicial oversight in a guardianship. As the United States Supreme court has stated, "[a]ction taken by taken by private entities with the mere approval or acquiescence of the State is not state action."«55»Were we to accept Cummings' theory of state action, every court appointee would have potential section 1983 liability. We are entirely confident this is not what Congress intended.

¶41 Mere supervision by a superior court is not sufficient for a finding that an appointed guardian was acting under color of state law. Summary judgment dismissing the Estate's section 1983 claims was proper.

«51»781 F.2d 367 (4th Cir. 1986).

«52»167 Wis. 2d 53, 482 N.W.2d 60 (1992).

«53» L.W. , 482 N.W.2d at 63 ("We stress that this opinion is limited in scope to persons in a persistent vegetative state.").

«54»Appellant's Br. at 32-33.

«55» Am. Mfrs. , 526 U.S. at 52; see also Flagg Bros. v. Brooks , 436 U.S. 149, 164, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978) ("This Court . . . has never held that a State's mere acquiescence in a private action converts that action into that of the State.").

760 Cummings v. Guardianship Servs. of Seattle Apr. 2005
128 Wn. App. 742

¶42 We affirm the orders granting summary judgment of dismissal as to all the Estate's claims regarding Howle, Sambataro and Saucedo, the section 1983 claims as to all respondents, and the abuse of vulnerable adults act claims as to all respondents. We reverse the orders granting summary judgment of dismissal of breach of fiduciary duty claims against Watkins and GSS, and the CPA claim against GSS, and remand for further proceedings consistent with this opinion.

¶43 Affirmed in part, reversed in part, and remanded.

¶44 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040 .

COX , C.J., and SCHINDLER, J., concur.Reconsideration denied and opinion modified September 13,