Custody of Salerno, In re, 11252-7-III

• Decision Date: 11 August 1992
• Docket Number: No. 11252-7-III,11252-7-III
• Citation: 66 Wn.App. 923,833 P.2d 470
• Parties: In re the Custody of Cher Marie SALERNO, a minor. Virginia Salerno VALLY, Appellant, v. Anthony SALERNO and Ruth M. Salerno, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 923

66 Wn.App. 923

833 P.2d 470

In re the Custody of Cher Marie SALERNO, a minor.

Virginia Salerno VALLY, Appellant, v. Anthony SALERNO and Ruth M. Salerno, husband and wife, Respondents.

No. 11252-7-III.

Court of Appeals of Washington,

Division 3, Panel One.

Aug. 11, 1992.

Kari J. Grytdal and Rascoff & Associates; and John E. Snoddy, Spokane, for appellant.

Carl J. Oreskovich, and Hemovich, Nappi, Oreskovich & Butler, Spokane, for respondents.

SHIELDS, Chief Judge.

After litigation in Illinois and Washington state courts, and the federal District Court for the Eastern District of Washington, Virginia Salerno Vally regained custody of her daughter, Cher Marie. She was awarded virtually all of her attorney fees and costs incurred in Washington, but denied attorney fees and travel expenses for the Illinois litigation. We affirm.

In February 1983, Ruth M. Salerno, grandmother of Cher Marie Salerno, flew to Spokane and took Cher Marie back to Batavia, Illinois. There, she obtained temporary custody and petitioned to adopt the child. After Ms. Vally was served with the Illinois temporary custody order she filed a petition for custody in Spokane County Superior Court. An order granting custody to Ms. Vally was entered June 10, 1983. The Washington order was taken to Illinois for enforcement.

Eventually, after lengthy proceedings in the Illinois state courts and the federal court, it was determined Washington had jurisdiction over Cher Marie's custody and the matter was returned to Spokane County Superior Court in 1987. On January 29, 1987, the court denied the Salernos' forum non conveniens motion and ordered the child returned to her mother. Ms. Vally then sought attorney fees for the actions in Illinois and Washington, plus travel expenses and counseling fees. On May 31, 1990, by memorandum opinion the court awarded Ms. Vally costs of $276.94 and attorney fees, which were incurred in the State of Washington, of $16,170, plus counseling fees of $990. It denied all costs and fees incurred in Illinois, as well as travel expenses, on the basis the Uniform Child Custody Jurisdiction Act (UCCJA) allows only Illinois to make those awards. The Salernos appealed and Ms. Vally cross-appealed. The Salernos' appeal was dismissed on their motion and the parties were redesignated.

Ms. Vally contends the trial court erred by (1) denying fees for another attorney in Washington and (2) concluding it did not have jurisdiction to award Ms. Vally's attorney fees and travel expenses necessitated by enforcement of the Washington custody judgment in Illinois. Both parties request attorney fees on appeal.

(1) Although the parties do not explain in their briefs the second Washington attorney's role, the attorney states in her affidavit she was contacted by Ms. Vally's first attorney to act as a consultant. It was within the trial court's discretion to award her fees. RCW 26.09.140, 26.09.260. The trial court's decision not to award attorney fees will not be reversed unless it is untenable or manifestly unreasonable. Chapman v. Perera, 41 Wash.App. 444, 453, 704 P.2d 1224, review denied, 104 Wash.2d 1020 (1985). The court's memorandum opinion makes no mention of the second attorney's claim, nor is it addressed in the court's findings of fact and conclusions of law. On the record before this court, we cannot say the failure to award the second attorney's fees was an abuse of discretion.

(2) Although Ms. Vally was awarded her Washington costs and attorney fees for proceedings under RCW 26.09 pursuant to RCW 26.09.140, that statute does not confer jurisdiction for an award of costs and fees incurred...