IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
WENDY MICHELLE MACHLEID,
ANDREW DOUGLAS MACHLEID,
FILED: July 23, 2012
Dwyer, J. — Andrew Machleid appeals from the final parenting plan and
property distribution entered in conjunction with a dissolution decree. But his
failure to comply with the Rules of Appellate Procedure or to provide an
adequate record precludes review of most of his allegations, and those
allegations that we do review are frivolous. Accordingly, we affirm the trial
court’s decision and award attorney fees to Wendy Machleid for having to
respond to a frivolous appeal.
Andrew and Wendy Machleid married in 2002 and separated in April
2010.1 They have four children. On June 6, 2011, following a six-day trial, the
trial court entered findings of fact and conclusions of law, a final parenting plan,
For purposes of clarity, we refer to the parties by their first names.
and a dissolution decree.
The parenting plan provides that the children will reside the majority of the
time with Wendy. Among other things, the trial court found that Andrew had
assaulted Wendy, neglected his parental functions, and pursued an abusive use
of conflict that created a danger of serious damage to the children’s
psychological development, and imposed a continuing restraining order and
restrictions under RCW 26.09.191. The parenting plan suspended Andrew’s
residential time with the children pending completion of a psychological
evaluation and the submission of the evaluator’s report to the court. Upon
successful compliance with any treatment recommendations, the plan permits
Andrew to resume supervised visits and, after six months, petition the court for
residential time or expanded supervised visits.
The court awarded the family home to Wendy and a condominium and a
rental home to Andrew. The court divided the parties’ retirement accounts
equally and divided the community liabilities essentially equally. The court did
not award maintenance.
On appeal, Andrew challenges certain provisions of the parenting plan
and the trial court’s property distribution. But his failure to comply with the basic
rules of appellate procedure precludes meaningful appellate review of most of
his allegations. Even though he is proceeding pro se, “the law does not
distinguish between one who elects to conduct his or her own legal affairs and
one who seeks assistance of counsel—both are subject to the same procedural
and substantive laws.” In re Marriage of Wherley, 34 Wn. App. 344, 349, 661
P.2d 155 (1983).
We will overturn the trial court’s decisions on parenting plan provisions
and the distribution of property only for an abuse of discretion. In re Marriage of
Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997); In re Marriage of Gillespie,
89 Wn. App. 390, 398, 948 P.2d 1338 (1997). The trial court abuses its
discretion if its decision is manifestly unreasonable or based on untenable
grounds. In re Marriage of Mansour, 126 Wn. App. 1, 8, 106 P.3d 768 (2004).
We review the trial court’s findings of fact for substantial evidence and the
conclusions of law de novo. In re Marriage of Zier, 136 Wn. App. 40, 45, 147
P.3d 624 (2006).
In his appellate brief, Andrew fails to adequately assign error to the trial
court’s relevant findings of fact. See RAP 10.3(a)(4). Nor does he support his
factual allegations or arguments with meaningful citations to the record as
required by RAP 10.3(a)(5) and (6). An appellate court has no obligation to
search the record for evidence supporting a party’s arguments. See Cowiche
Canyon Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). And
Andrew’s repeated attempts to incorporate arguments and issues by reference
to documents presented to the trial court are equally ineffective. See US West
Commc’ns, Inc. v. Wash. Utils. & Transp. Comm’n, 134 Wn.2d 74, 111-12, 949
P.2d 1337 (1997) (issues incorporated solely by reference to trial court
memoranda will be deemed abandoned on appeal).
Most significantly, a party challenging the trial court’s findings of fact has
the burden of including in the appellate record “all evidence relevant to the
disputed verdict or finding.” RAP 9.2(b). The failure to provide an adequate
record “precludes review of the alleged errors.” Bulzomi v. Dep’t of Labor &
Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994). Because Andrew has not
provided a report of proceedings for any portion of the six-day trial, this court
cannot review the sufficiency of the evidence or the trial court’s evidentiary
rulings. See In re Parentage & Custody of A.F.J., 161 Wn. App. 803, 806 n. 2,
260 P.3d 889, review granted in part, denied in part, 172 Wn.2d 1017 (2011).
The trial court’s findings of fact are therefore verities on appeal and binding
upon this court. Morris v. Woodside, 101 Wn.2d 812, 815, 682 P.2d 905 (1984).
Andrew contends that the trial court applied the wrong legal standard
when entering the residential provisions of the parenting plan. In particular, he
alleges the trial court failed to comply with RCW 26.09.187(3)(a)(i), which directs
the trial court when deciding residential provisions to accord the greatest weight
to the “relative strength, nature, and stability of the child’s relationship with each
parent.” Andrew claims that the evidence was “undisputed” that he was the
children’s “primary and sole” caregiver.
But Andrew relies on nothing more than his own conclusory allegations to
support these claims. He has failed to provide this court with the testimony on
this issue that was presented at trial. And the trial court expressly found that
made a number of serious accusations involving alleged unlawful
and unethical behavior against the petitioner, against the Guardian
ad Litem, against counsel for petitioner, and against several of the
witnesses, including witnesses that the respondent had either
identified as collateral resources for the GAL, or had subpoenaed
to testify as the respondent’s witness. Indeed, the respondent
testified and argued to the court essentially that each witness who
provided testimony that was unfavorable to the respondent was
committing perjury. The respondent failed to produce any credible
evidence in support of his accusations.
The respondent also made various claims at trial for which he
failed to produce any evidence, other than his own testimony,
including his claims that he was the primary caregiver for the
children, that the mother was neglectful, that the mother was
dishonest, that the mother did not value education for the children,
and that the mother had assaulted the respondent on numerous
The court further found that Wendy was “credible in all respects” and that
Andrew’s credibility “was called into question repeatedly.” This court cannot
retry the facts on appeal, and we will defer to the trier of fact for purposes of
resolving conflicting testimony and evaluating the persuasiveness of the
evidence and credibility of the witnesses. Thompson v. Hanson, 142 Wn. App.
53, 60, 174 P.3d 120 (2007), aff’d, 168 Wn.2d 738, 239 P.3d 537 (2009).
Moreover, even if the evidence established that Andrew played a
significant role as caregiver, the trial court imposed parenting restrictions based
on RCW 26.09.191(2) and (3). For the reasons set forth above, the trial court’s
findings supporting imposition of those restrictions are verities on appeal, and
those findings amply support the imposition of restrictions.
Andrew contends that Wendy physically and verbally assaulted him
“hundreds of times before[,] during[,] and after the marriage” and committed a
series of state and federal crimes in an effort to prevent him from maintaining a
relationship with his children. But he fails to identify even a shred of meaningful
evidence supporting these allegations, and the trial court flatly rejected them.
They warrant no further consideration on appeal. See Saunders v. Lloyd’s of
London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will decline
to consider issues unsupported by cogent legal argument and citation to relevant
Andrew contends that the evidence failed to support the trial court’s
finding that he assaulted Wendy in the family car on April 5, 2010. He asserts
that Wendy attacked him, that he merely attempted to shield himself from her
attack, and that he had a right to defend himself. But the trial court heard and
considered the evidence on this issue and found that Andrew “physically
assaulted the mother in April of 2010 while in the car with the parties’ Au Pair
and the children.” That finding is a verity on appeal.
Andrew asserts that even if the assault occurred, it did not support the
imposition of parenting restrictions under RCW 26.09.191(2)(a), which requires
“an assault . . . which causes grievous bodily harm.” He maintains there was no
evidence of grievous bodily harm.
But Andrew’s argument neglects to address the complete statutory
provision and the trial court’s finding. RCW 26.09.191(2)(a) mandates
restrictions on a parent’s residential time if the court finds, as it did here, that the
parent committed “an assault . . . which causes grievous bodily harm or the fear
of such harm.” (Emphasis added.) Moreover, the trial court based its imposition
of parental restrictions not only on the finding that Andrew committed an assault,
but also on findings of a substantial neglect of parenting functions and an
abusive use of conflict. See RCW 26.09.191(3)(a), (e).
Andrew contends that the trial court abused its discretion when it failed to
make a just and equitable distribution of property. Among other things, he
argues that the trial court failed to consider the separate character of his two
rental properties, his efforts in constructing the family home, his management of
the parties’ retirement accounts, and his pursuit of community property litigation.
He also challenges the trial court’s award of $20,000 in attorney fees, the award
of all community personal property to Wendy, and the trial court’s decision
requiring him to pay certain individual items, including emergency home repairs,
a cell phone bill, 45 percent of the Children’s Guild bill, and various community
In a dissolution proceeding, all property, both community and separate, is
before the court for distribution. In re Marriage of Brewer, 137 Wn.2d 756, 766,
976 P.2d 102 (1999). The court’s distribution of all marital property “shall
appear just and equitable after considering all relevant factors,” including the
nature and extent of the community and separate property, the duration of the
marriage, the economic circumstances of each spouse at the time of the
distribution, “including the desirability of awarding the family home . . . to a
spouse . . . with whom the children reside the majority of the time.” RCW
26.09.080. The trial court is clearly in the best position to determine what is fair
and equitable. Brewer, 137 Wn.2d at 769.
Although Andrew challenges certain individual components of the
property distribution, he makes no effort to demonstrate that the trial court failed
to consider all relevant factors when dividing the property or that the overall
distribution was not fair or equitable. For this reason alone, Andrew’s challenge
to the property distribution fails.
Moreover, Andrew’s allegations rest on factual assertions that are either
unsupported by any evidence or were expressly rejected by the trial court. The
trial court found that Andrew had failed to present any evidence supporting his
request for compensation for managing the parties’ retirement accounts or for an
award for his work as a general contractor on the family home. The court also
found that Andrew’s handling of the community property litigation “likely resulted
in economic waste to the community.” Finally, the trial court’s findings of
Andrew’s repeated refusals to comply with the law, court orders, and discovery
requests, his repeated filings of frivolous motions, and his ongoing abusive use
of conflict, amply support the award of $20,000 in attorney fees for Andrew’s
intransigence. See In re Marriage of Buchanan, 150 Wn. App. 730, 739, 207
P.3d 478 (2009).
Here, the record shows that both parties had stable employment. With
some adjustments, the court awarded the family home to Wendy, and the two
rental properties, which it characterized as Andrew’s separate properties, to
Andrew. The court divided the parties’ retirement accounts equally and, contrary
to Andrew’s assertions, distributed community personal property, including
vehicles, to both parties. The court divided certain community liabilities equally
and directed Andrew to pay 45 percent of other community obligations. Viewed
in light of the parties’ economic circumstances, the nature and extent of the
property, and the provisions of the parenting plan, we find no abuse of
Andrew contends that the trial court erred in prohibiting him from calling
certain witnesses, including “friends, family members, attorneys, police officers,
and building officials.” He claims these witnesses would have impeached the
testimony of Wendy’s witnesses.
But Andrew does not identify the offer of proof that he made for any of
these witnesses or the trial court’s stated basis for its exclusion of the proposed
evidence. Consequently, he has not preserved the alleged error for review or
demonstrated that the trial court abused its discretion in excluding the testimony.
See Kysar v. Lambert, 76 Wn. App. 470, 490-91, 887 P.2d 431 (1995); ER
103(a)(2) (error may not be predicated on ruling excluding evidence unless
substance of evidence was made known to the court); City of Spokane v. Neff,
152 Wn.2d 85, 91, 93 P.3d 158 (2004) (trial court evidentiary rulings are
reviewed for an abuse of discretion).
Andrew has moved to stay the trial court’s order requiring him to transfer
his interest in the family home to Wendy. He claims the transfer would
“irreparably harm” him if it were carried out before he has a chance to prevail on
But the trial court has twice denied Andrew’s motions to stay enforcement
of the dissolution decree. He has not sought review of those trial court’s
decisions. Nor has he exercised his right to stay enforcement of trial court
decisions affecting property by filing a supersedeas bond or other security in the
trial court. See RAP 8.1(b)(2). Because Andrew has not identified any
cognizable basis for this court to stay enforcement of the dissolution decree, the
motion is denied. See RAP 8.1(b)(3).
Wendy has requested an award of attorney fees on appeal. We exercise
our discretion and award attorney fees for a frivolous appeal. RAP 18.9(a). An
appeal is frivolous “if the appellate court is convinced that the appeal presents
no debatable issues upon which reasonable minds could differ and is so lacking
in merit that there is no possibility of reversal.” In re Marriage of Foley, 84 Wn.
App. 839, 847, 930 P.2d 929 (1997). Andrew’s reliance on the same
unsupported and self-serving allegations that he raised in the trial court, his
failure to address the evidence before the trial court or the bases for the trial
court’s decisions, and his failure to provide an adequate record for review satisfy
that standard here. Wendy is awarded her attorney fees on appeal, subject to
compliance with RAP 18.1(d).
Andrew’s motion for a stay is denied; the trial court’s decision is affirmed.