Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of            )
                                            )   No. 66213-9-I
IRENE C. BUBERNAK,                          )
                                            )   DIVISION ONE
                      Appellant,            )
                                            )  UNPUBLISHED OPINION
              and                           )
                                            )   
THOMAS GIRAULT BUBERNAK,                    )
                                            )   FILED:  February 13, 2012
                      Respondent.           )

       Grosse, J.  --  In making child placement decisions, the trial court is in the 

best position to observe the parties to determine their credibility and to sort out 

conflicting evidence.  Because of the trial court's unique opportunity in this 

regard, appellate courts are reluctant to disturb a trial court's decision.  Here, the 

trial court's credibility determinations and decisions as to the weight to assign 

conflicting testimony are supported by substantial evidence.  Its determinations 

as to the placement of the parties' son were both reasonable and tenable.  Nor 

do we find that the conduct of appellant's counsel at trial warrants 

reconsideration, a new trial, or relief from the judgment.  Accordingly, we affirm 

the trial court's parenting plan and order of child support.

                                        FACTS

       Thomas and Irene Bubernak were married in September 1996.  Their son

was born in March 2004.  Irene filed a petition for dissolution in December 2008.  

After a trial, the court entered a final parenting plan making Thomas the primary 

residential parent.  The court also entered an order of child support under which  

No. 66213-9-I / 2

Irene is obligated to pay $553.40 per month.  Although she appeals the child 
support order, Irene does not make any arguments regarding it in her brief.1  The 

trial court denied Irene's motion for reconsideration, a new trial, and relief from

judgment.

       Additional facts regarding the court's decision as to the  residential 

placement and as to other issues Irene raises on appeal will be discussed below 

where relevant.

                                      ANALYSIS

Standard of Review

       We review     a trial court's parenting plan decisions for an abuse of 
discretion.2  A trial court abuses its discretion when its decision is manifestly 

unreasonable or based on untenable grounds or untenable reasons.3  Because 

of its "unique opportunity to observe the parties to determine their credibility and 

to sort out conflicting evidence," the trial court's discretion in this regard is 
broad,4  and appellate courts are reluctant to disturb a trial court's  child 

placement decisions.5    Determining the credibility of witnesses and the weight to 

assign conflicting testimony is for the trial judge, whose findings are reviewed 
only to determine whether they are supported by substantial evidence.6

Challenges to the Parenting Plan

1 The child support order appears only as an attachment to Irene's notice of 
appeal, and the notice of appeal is not in the trial court record.
2 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).
3 Littlefield, 133 Wn.2d at 46-47.
4 In re Marriage of Woffinden, 33 Wn. App. 326, 330, 654 P.2d 1219 (1982).
5 In re Marriage of Kovacs, 121 Wn.2d 795, 801 n.10, 854 P.2d 629 (1993) 
(citing In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981)).
6 In re Pennington, 142 Wn.2d 592, 602-03, 14 P.3d 764 (2000).

                                           2 

No. 66213-9-I / 3

       1.     Relative strength, nature, and stability of the  child's relationship 
       with each parent.

       RCW 26.09.187(3) sets out the factors a trial court must consider in 

making residential provisions for a child in a parenting plan.             Under RCW 

26.09.187(3)(a)(i), the trial court is required, in making residential provisions, to 

give the greatest weight to the relative strength, nature, and stability of the 

child's relationship with each parent.  Irene argues that the evidence as to this 

factor favors her because she did not work full time for two years after their son's 

birth and was, at all times before trial, his primary provider.  This fact, even if 

true, does not,    however,  necessarily mean that application of the "relative 
strength, nature, and stability of the child's relationship with each parent"7 factor 

must weigh in Irene's favor.  Moreover, Irene herself testified at trial that she 

worked four days a week for the first two years after their son's birth and had an

in-home nanny care.       And, although Irene testified that she was the  primary 

parent since their son's birth, Thomas testified that, aside from breastfeeding, he 

did the bulk of the parenting.   The trial court's determination that Thomas's 

testimony on this     issue was more credible than Irene's  is  supported by 

substantial evidence, and we will not disturb that determination.

       More   importantly, Jennifer Keilin, the court-appointed parenting plan 

evaluator,  submitted an extensive report in which she recommended that 

Thomas be the primary residential parent.  Keilin's report is based on interviews 

with Thomas and Irene, home visits with each parent and the child, parent-child 

observations with both parents, a review of an interpretation by Dr. Marsha 

7 RCW 26.09.187(3)(a)(i).

                                           3 

No. 66213-9-I / 4

Hedrick of her psychological testing of Irene and Thomas, the pleadings filed in 

the dissolution action, parent questionnaires completed by Irene and Thomas, 

and various other materials Irene and Thomas provided.

       As to the relative strength, nature, and stability of the child's relationship 

with Irene and Thomas, Keilin opined that the child             appeared to have a 

somewhat stronger, more positive, and more stable relationship with Thomas.  

Keilin concluded:

       No significant concerns were noted regarding Tom's parenting or 
       relationship with [the child].  Regarding Irene, concerns regarding 
       her history of depression were supported by the data, and some 
       problematic personality traits were noted, including difficulties 
       managing time and other details, rigidity, and a tendency to 
       become overwhelmed.  Intervention services are recommended.  
       Concerns were noted regarding Irene's parenting history and 
       current parenting and relationship with [the child], including 
       communication     problems, some acting out by [the child], and 
       Irene's difficulty meeting [the child's]         emotional needs for 
       consistency and routine at times. . . .

       Both parents love [the child] and put effort into prioritizing his 
       needs.  The data supports that, of the two parents, Tom has better 
       emotional health and has consistently provided [the child] a stable, 
       loving relationship.  He also has somewhat stronger parenting 
       skills, including a greater ability to provide structure and routine.  
       Tom's schedule is more flexible and he has greater availability than 
       Irene.  Finally, [the child] loves both parents, but he has a stronger 
       affinity for and a better relationship with Tom.  The current 
       schedule [the child       residing primarily with Irene] could be 
       exacerbating the difficulties in [the child's] relationship with Irene 
       by not meeting [his] needs for time with Tom.  Based on all the data 
       provided to me, it is my recommendation that [the child] reside 
       primarily with Tom.

       The trial court found no indication that Keilin's report and her 

assessments of the parents were biased or unsound in their analyses and 

agreed with Keilin's application of the statutory factors and her conclusion that, 

                                           4 

No. 66213-9-I / 5

based on the factors, Thomas should be the primary residential parent.           Keilin's 

testimony during trial was substantively the same as the statements in her 
written report.8   Also, the statements of the  various  friends, colleagues, and 

others whom Keilin interviewed, included in her report, were consistent with the 

testimony of those witnesses at trial.  For instance, Nancy Burza, the child's 

kindergarten teacher, testified that he seemed more stressed on the days Irene 

brought him to school and that, on those days, it took him longer to get into the 

day's routine than on the days Thomas brought him to school.  She also testified 

that the child seemed more excited to be with Thomas and more comfortable 

with Thomas than with Irene.  Jennifer Mathis, who lived across the street from 

the Bubernaks when they were married, testified that in her opinion Thomas and 

the child had a great relationship.  She also testified that as a parent, Irene 

seemed a bit withdrawn.      In sum, substantial evidence supports the conclusion 

that the child's relationship with Thomas is stronger, more positive, and more 

stable than his relationship with Irene.       We will not disturb the trial court's 

determination.

       2.     Allegations of domestic violence.

       Irene  argues that the trial court erred in finding that none of the 

8 For example, Keilin testified:  "It was my opinion based on the data that Mr. 
Bubernak had the stronger parenting skills.  He had the better relationship with 
[the child], the greater availability of time, the better ability to support [the child] 
meeting his needs and that his overall mental health and day-to-day functioning 
was greater such that would sustain [the child]."       She also testified:  "I felt that 
the data supported that Ms. Bubernak struggles in her relationship with [the 
child].  She had more difficulty managing his behavior.  She had more difficulty 
meeting his needs, such as getting him to school on time and that their 
communication didn't seem as strong."

                                           5 

No. 66213-9-I / 6

restrictions in RCW     26.09.191 applied, including any restriction related to 

domestic violence.     Irene claims that the evidence showed that Thomas had
been physically and emotionally abusive.9        The trial court, however, found:  "I 

find specifically that Tom has not committed domestic violence in the 

relationship as defined by State law.  This finding is made after listening to the 

testimony of Tom and Irene and considering the other evidence in this case.  On 

balance, domestic violence has not been proven."

       Keilin's conclusion as to whether Thomas committed domestic violence 

was based on reports of Joan Oncken, the parties' joint counselor, and Dr. 

Roland Maiuro, who conducted a domestic violence evaluation.  Keilin 

concluded that Thomas committed "two minor acts of physical aggression as well 

as some coercive controlling behavior, including criticism, belittling and 

persistent requests that wore her down."      At trial, however, Oncken testified that 

she told Keilin that she heard from only evaluators and reporters that there may 

have been some shoving, but never saw that behavior personally during two and 

a half years of counseling, never heard domestic violence allegations from the 

parties themselves, and never saw bruises on Irene's arm, even though Irene 

claimed that Thomas grabbed her so hard on one occasion during the time the 
parties were in counseling that she was left with bruises on her arm.10        She also 

testified that, had allegations of domestic violence been made during her 

counseling, she would have made a note of that fact and referred the parties to a 

9 A domestic violence protection order was issued on December 15, 2008, 
shortly after Irene filed for dissolution, effective for one year.  
10 This incident involved Irene's throwing a knife in the kitchen sink and, 
according to Thomas, his grabbing her arm as she reached for a fork to throw.  

                                           6 

No. 66213-9-I / 7

domestic violence expert.     Apparently, Oncken's notes do not mention domestic 

violence, although her notes are not in the record.

       Dr. Maiuro did not submit a written domestic violence evaluation, but 

rather only spoke with Keilin.  Keilin testified that Dr. Maiuro made a "qualified 

finding" of domestic violence, meaning "it technically meets the criteria but he's 

not fully confident in the strength of the data such that he could defend it as 

being super-strong."    Keilin testified that Dr. Maiuro misunderstood Oncken and 

thought that Oncken had heard the shoving allegation directly from Irene, when 

in fact Oncken heard it from other people.

       In support of her allegation of domestic violence, Irene relies to a great 

extent on the report and testimony of Doug Bartholomew, a mental health 

counselor, who performed a risk assessment for Thomas and concluded that 

Thomas committed domestic violence.  The trial court completely discredited 

Bartholomew's report, stating: "In 22 years on the bench, I have never reviewed 

any expert report such as this.  It is internally inconsistent, not at all neutral, and 

so sloppily drafted that the author never even proofread it, as he admitted.  
Consequently, I give no credence to the Bartholomew report."11           The trial court 

also gave no credibility to the testimony of Marion Hilfrink, Irene's counselor, as 

to domestic violence, finding that Hilfrink's testimony was biased.           The court 

found no credible evidence that Thomas was physically violent to Irene or that 

Irene was ever in reasonable fear of any physical violence.

       The evidence supporting the domestic violence allegations                 is not 

11 Bartholomew's report is an exhibit on appeal.  The trial court's description of 
the report is a fair description.

                                           7 

No. 66213-9-I / 8

substantial, aside from the testimony the trial court deemed not credible.  In fact, 

even Bartholomew concluded that "[i]t can't be determined in this evaluation 

whether or not he assaulted her."  The trial court was in the best position to 

make credibility determinations.  Its credibility determinations, as well as its 

finding of no domestic violence, are supported by substantial evidence.

       3.     Meeting the statutory objectives of a parenting plan.

       Irene argues that the parenting plan fails to meet some of the objectives 

of a parenting plan set out in RCW 26.09.184(1).  One such objective is to 
minimize the child's exposure to harmful parental conflict.12        Irene argues that 

the provision for an in-person exchange on Sunday evenings, where Irene would 

return the child to Thomas, increased the child's exposure to harmful parental 

conflict.  She claims that the trial court should have instead ordered Irene to 

return the child directly to school on Monday mornings.  But, Irene cites to no 

evidence in the record showing that Irene and Thomas engaged in any conduct 

harmful to their son when they met to exchange custody on Sunday evenings.  

And, Nancy Burza, one of the child's teachers, testified that Thomas was never 

late bringing the child to class, but the child was frequently late to school when 

Irene brought him.  Burza also testified that children who are tardy tend to feel 

that they are behind the rest of the class and are denied the chance to socialize 

before classes begin.  "A lot of times when the child arrives late and it's very 

unsettling for them, it takes them a while to just feel like they're fitting in.  They 

don't get to greet teacher and kids in the morning."     Having Irene return the child 

12 RCW 26.09.184(1)(e).

                                           8 

No. 66213-9-I / 9

to Thomas on Sunday evenings, rather than having Irene drop him off at school 

on Monday mornings, would reduce the times the child would be tardy.  Given 

Burza's testimony, this arrangement is better for their son.  Also, as stated, Irene 

fails to cite any evidence of parental conflict occurring during           the Sunday 

evening exchanges.

       Another objective of a parenting plan Irene claims is not met is the 

objective of providing "for the child's changing needs as the child grows and 

matures, in a way that minimizes the need for future modifications to the 
permanent parenting plan."13      Irene does not make an extensive argument in 

support of this contention, nor does she indicate what sort of provisions she 

claims should have been included in the parenting plan.

       Irene's argument that the trial court's determination should be reversed on 

the ground that the parenting plan fails to meet certain of the statutorily-

prescribed objectives of a parenting plan is without merit.

       4.     Joint decision making.

       Irene argues that the trial court erred by not giving both parents the right 

to make decisions as to the day-to-day care and control of the child and the right 

to make emergency decisions affecting his health or safety.  This contention is 

completely  without merit.  The parenting plan clearly gives both parents this 

decision-making authority:

       Each parent shall make decisions regarding the day-to-day care 
       and control of each child while the child is residing with that parent.  
       Regardless of the allocation of decision making in this parenting 
       plan, either parent may make emergency decisions affecting the 
       health or safety of the child.

13 RCW 26.09.184(1)(c).

                                           9 

No. 66213-9-I / 10

       The parenting plan gives Thomas the right to make major decisions as to 

the child's education and non-emergency health care.  The plan also provides as 

to major decisions:

       For all major decisions, father shall send an e-mail to the mother 
       regarding the issue or potential appointment for [the child].  If 
       mother does not respond within 48 hours, then it is assumed her 
       approval is given.  If there is a conflict in the approach to be taken, 
       mother may submit via e-mail her objection and the father shall in 
       good faith consider her input and attempt to be flexible before 
       making his final decision.

       Irene argues that the trial court failed to follow RCW 26.09.187(2) when it 

gave Thomas sole decision making.  However, the statute requires a trial court 

to order sole decision making when it finds that (1) a limitation on the other 

parent's decision making is mandated by RCW 26.09.191; (2) both parents are 

opposed to mutual decision making; or (3) one parent is opposed to mutual 

decision  making, and such opposition is reasonable based on the criteria in 

subsection (c).  Subsection (c) requires the court to consider the following 

criteria in allocating decision-making authority: (1) the existence of a limitation 

under RCW 26.09.191; (2) the history of participation of each parent in decision 

making in each of the areas in RCW 26.09.184(5)(a); (3) whether the parents 

have a demonstrated ability and desire to cooperate with one another in decision 

making in each of the areas in RCW            26.09.184(5)(a); and (4) the parents'

geographic proximity to one another, to the extent that it affects their ability to 
make timely mutual decisions.14

       Here, the trial court based its decision as to sole decision making on its 

14 RCW 26.09.187(c).

                                           10 

No. 66213-9-I / 11

finding that one parent is opposed to mutual decision making based on the 

parties' lack of cooperation in the last 18 months and such opposition is 

reasonably based on the statutory criteria listed above.  Irene ignores this 

provision in the parenting plan and argues instead that the trial court made no 

finding to support its decision to award sole decision making.         Further, the trial 

court's decision is supported by Keilin's parenting plan evaluator's report in 

which she states that joint decision making may not be feasible and that if the 

court favors ordering sole decision making due to the parents' history, the court 

should award it to Thomas.  And, as Thomas notes, Irene herself testified that 

she did not feel that she could have joint decision making with Thomas.  The trial 

court's determination as to sole decision making was not an abuse of discretion.

       5.     Increased time and involvement by Irene.

       Irene argues that the trial court erred by failing to provide in the parenting 

plan a mechanism that would allow Irene to return to court to obtain increases in 

her residential time.  She cites no authority in support of her argument that this 

was error and claims, without explanation, that a modification action would not 

be a sufficient remedy.  We reject Irene's unsupported argument.

       6.     Conclusion

       The overwhelming amount of the evidence the trial court heard and read 

supports the court's decision to make Thomas the primary residential parent.  

The court determined that Bartholomew's and Hilfrink's testimony, which 

conflicted with the majority of the evidence, was not credible.  The trial court's

credibility determination is supported by substantial evidence, and we will not 

                                           11 

No. 66213-9-I / 12

disturb it.  The court's decision to make Thomas the primary residential parent 

was based on competent, substantial evidence, was not an abuse of the court's 

broad discretion in parenting plan matters.

                                           12 

No. 66213-9-I / 13

Motion for a new trial, reconsideration, and relief from judgment

       Irene appeals the trial court's denial of her motion for reconsideration, a 

new trial, and relief from judgment.  The first issue is whether Irene's motion was 

timely filed.

       The final parenting plan was entered October 8, 2010.  Irene filed her

motion on October 18, 2010.  CR 59(b) requires motions for a new trial or 

reconsideration to be filed not later than 10 days after the entry of the judgment, 

order, or other decision.  Thomas argues that Irene's motion was untimely 

because the trial court stated, in its oral ruling rendered on August 12, 2010, that 

its order was effective immediately because, "[i]n a family law case, just saying it 

on the record has the effect of an order."    Thomas cites no authority to show that 

the trial court was correct in its assertion and that Irene's motion was untimely.  

Moreover, pursuant to CR 58(b), an order is deemed entered for all procedural 

purposes from the time of delivery to the clerk for filing.  And, a court's oral 

decision is subject to change by the trial judge at any time before entry of the 
judgment.15   Under these authorities, the trial court's order was entered, for 

purposes of the 10-day period for filing motions for reconsideration, on October 

8.  We reject Thomas's argument that Irene's motion was untimely.

       In Washington, a strong policy favors the finality of judgments on the 
merits.16  We review the grant or denial of a motion for a new trial under CR 59, 

where, as here, the motion is not based on an allegation of legal error, for abuse 

15 El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 857, 376 P.2d 528 (1962).
16 Stanley v. Cole, 157 Wn. App. 873, 887, 239 P.3d 611 (2010).

                                           13 

No. 66213-9-I / 14

of discretion.17 The abuse of discretion standard of review also applies to a trial 

court's order on reconsideration18 and to a trial court's order on a motion for 

relief from judgment under CR 60(b)(11).19

       Irene sought a new trial or reconsideration, as well as relief from 
judgment, based on the conduct of her counsel at trial, Jan Dyer.20  Irene argues 

she is entitled to a new trial or reconsideration under CR 59(a)(1), providing for 

a new trial or reconsideration on the ground of an irregularity in the proceedings 

by which she was prevented from having a fair trial, and CR 59(a)(9), providing 

for a new trial or reconsideration on the ground that substantial justice has not 

been done.  She claims she is entitled to relief from judgment under                 CR 

60(b)(11), providing for relief from judgment for "[a]ny other reason justifying 

relief from the operation of the judgment."

       The trial court admonished Dyer about her sarcastic tone while cross-

examining Thomas.  This occurred on August 10, two days before closing 

arguments.     After the court's admonishment,        Dyer launched into a lengthy 

discussion in defense of her actions and accused the court of embarrassing her 

and of degrading her in another case eight years earlier.  She               eventually 

apologized to the court.  Dyer then moved for a recusal,  and the trial court 

denied her motion.  She then began to cry and asked permission to withdraw, 

saying that she had "reached [her] max," could not continue, and would likely cry 

throughout the remainder of the trial.  The court allowed both attorneys to argue 

17 Edwards v. Le Duc, 157 Wn. App. 455, 459, 238 P.3d 1187 (2010).
18 Sligar v. Odell, 156 Wn. App. 720, 734, 233 P.3d 914 (2010).
19 In re Marriage of Shoemaker, 128 Wn.2d 116, 120-21, 904 P.2d 1150 (1995).
20 Irene has new counsel on appeal.

                                           14 

No. 66213-9-I / 15

for and against a continuance, and then denied Dyer's motion.

       The court then allowed Thomas's counsel to call Keilin, the parenting plan 

evaluator, who was arguably the most important witness for purposes of the 

parenting plan and who clearly favored designating               Thomas as primary 

residential parent.  The record reflects that during Keilin's testimony on direct 

examination, Dyer was "sobbing" in the courtroom and, apparently, made such 

noise by slamming furniture that the court reporter noted "loud crash" on three 

occasions.    Also during Keilin's direct examination, Dyer's cell phone rang, 

causing the court reporter to note a "barking cellphone interruption."            Dyer's 

antics stopped, however, when she began her cross-examination of Keilin.  She 

engaged in a long cross-examination and also examined the remaining 

witnesses without incident.

       Dyer's next confrontation with the trial judge occurred after the court gave 

its oral ruling on August 12.  Dyer stated she objected to the court's retaining 

jurisdiction over the case and renewed her request for a recusal.  The court 

informed Dyer that he had "no personal bias whatsoever" with regard to her, 

although he did have concerns about her             performance at trial, which he 

previously noted on the record.  Dyer informed the court that she had already 

"consult[ed] people" and would be filing a complaint with the Judicial Conduct 
Commission.21

21 According to Irene and one of her friends who attended trial, one morning 
before trial, Dyer told them she left a note in the trial judge's mailbox in which 
she quoted a Bible passage which, according to Irene, contained a veiled threat 
that the judge would "die young" because of his words to her.  The trial judge did 
not mention receiving any note from Dyer, and no such note appears in the 
record.

                                           15 

No. 66213-9-I / 16

       Despite the fact that, judging from her argument on appeal, Irene had 

problems and concerns with Dyer's performance almost from the outset of Dyer's 

representation of her, Irene did not attempt to replace Dyer with new counsel
until the conclusion of the proceedings in the trial court.22     Dyer's behavior was 

indeed  somewhat unusual         at times, and she did request a number of 

continuances due to her physical problems.  Also, early in the proceedings, she 

claimed to have been affected by anesthesia.  But, the record shows that Dyer 

thoroughly examined and cross-examined the witnesses and appears from the 

record to have      provided competent representation.  And the trial court 

maintained its composure throughout the trial and appeared to be unfazed by 

Dyer's behavior.  The court specifically stated that it had no personal bias 

against Dyer, and there is no indication that the trial court was in any way 

influenced by its disapproval of Dyer's sarcastic tone on cross-examination.  The 

court carefully explained the bases for its decision, namely the evidence 

presented and the application of the statutory factors to that evidence.  The 

record does not show that Irene was prevented from having a fair trial due to any 

irregularity in the proceedings, as required for relief under CR 59(a)(1).  Further, 

the evidence before the court was overwhelmingly in favor of naming Thomas as 

the primary residential parent.  Accordingly, the record does not show that 

substantial justice was not done, as required for relief under CR 59(a)(9).  

22 Thomas claims that, at the time of trial, Irene was working with three attorneys 
with regard to her mother's estate and was dating a family law attorney, the 
implication being that, had Dyer's representation been so incompetent, these 
attorneys would have advised Irene and helped her retain new counsel.  There 
is, however, nothing in the record to support this allegation.

                                           16 

No. 66213-9-I / 17

Moreover, given the weight of the evidence, the outcome of reconsideration or a 

new trial with different counsel would  in all likelihood have been the same; 

accordingly, Irene cannot show prejudice.

       CR 60(b)(11), providing for relief from judgment for "[a]ny other reason 

justifying relief from the operation of the judgment," is confined to extraordinary 
circumstances that are substantial deviations from a prescribed rule.23         Relief is 

granted sparingly under this subsection.24     The general rule is that a party is not 

entitled to relief under CR 60(b)(11) based on an attorney's gross negligence.  

Rather, the incompetence or neglect of a party's own attorney is generally 
insufficient to justify relief from a judgment in a civil case.25  This court in Barr v. 

MacGugan26 recognized an exception to this general rule, but carefully limited its 

application.  In Barr, the trial court dismissed the plaintiff's case with prejudice 

and without resolution on the merits after the plaintiff's attorney failed to comply 

with the trial court's order compelling responses to discovery requests.  The 

plaintiff left several phone messages with her attorney to check on the status of 

her case, but the attorney never responded.  The plaintiff learned from a third 

party that her case had been dismissed and also learned that her attorney had 

been suffering from severe clinical depression.  The plaintiff hired new counsel 

and filed a motion to vacate the dismissal order under CR 60(b)(11).  The trial 

court granted the plaintiff's       motion, and this court affirmed.  While 

23 In re Marriage of Furrow, 115 Wn. App. 661, 673-74, 63 P.3d 821 (2003).
24 In re Marriage of Knutson, 114 Wn. App. 866, 872, 60 P.3d 681 (2003).
25 Lane v. Brown & Haley, 81 Wn. App. 102, 107, 912 P.2d 1040 (1996); Stanley, 
157 Wn. App. at 886.
26 119 Wn. App. 43, 78 P.3d 660 (2003).

                                           17 

No. 66213-9-I / 18

acknowledging the general rule that an attorney's negligent conduct is binding 

on the client, the court concluded that this general rule did not necessarily apply 

when a lawyer's severe mental illness or disability interfered with the attorney-

client relationship.  The court in Barr specifically limited this exception to the 

general rule "to situations where an attorney's condition effectively deprives a 
diligent but unknowing client of representation."27

       Here, unlike in Barr, the case was fully tried and resolved on the merits.  

Also, unlike in Barr, Irene was aware of Dyer's condition during trial.  For 

example, in her declaration in support of her motion, Irene stated that Dyer's 

behavior in and out of court "was bewildering" and turned out to be worse than 

she initially believed.  She also stated that throughout the case, she "began to 

have [her] own concerns about Ms. Dyer's mental stability."  The exception in 

Barr is not available here and Dyer's conduct is not grounds upon which Irene 

can obtain relief under CR 60(b)(11).

Attorney fees

       Irene makes a one-sentence request for an award of attorney fees under 

RCW 26.09.140.  Also, at the very end of his brief, Thomas asserts that he 

"should be awarded attorney's fees for having to defend a frivolous appeal."  

These one-sentence requests are not sufficient.  A party requesting attorney 
fees must devote a section of its opening brief to the request.28

       Thomas also requests an award of attorney fees under RCW 26.09.140, 

and properly devotes a section of his brief to his request.  Under that statute, 

27 Barr, 119 Wn. App. at 48.
28 RAP 18.1.

                                           18 

No. 66213-9-I / 19

this court may, in its discretion, order a party to pay for the cost to the other party 

of maintaining the appeal, including attorney fees, in addition to statutory costs.  

This provision gives the court discretion to award attorney fees to either party 

based on the parties' financial resources, balancing the financial need of the 
requesting party against the other party's ability to pay.29   Both Thomas and 

Irene filed financial declarations.  Based on these financial declarations, we 

deny Thomas's request for an award of attorney fees under RCW 26.09.140.

Conclusion

       We affirm the trial court's parenting plan and order of child support.  We 

deny both parties' requests for an award of attorney fees on appeal.

WE CONCUR:

29 In re Marriage of Pennamen, 135 Wn. App. 790, 807-08, 146 P.3d 466 (2006).

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