WARE v. STATE, 157 Wn. App. 1071 (2010)

No. 64007-1-I.The Court of Appeals of Washington, Division One.
Filed: September 27, 2010. UNPUBLISHED OPINION.

Appeal from a judgment of the Superior Court for Snohomish County, No. 09-2-02606-6, Bruce I. Weiss, J., entered July 15, 2009.

Affirmed by unpublished opinion per Grosse, J., concurred in by Appelwick and Lau, JJ.

GROSSE, J.

A child support order authorized the Department of Social and Health Services (DSHS) to collect certain unpaid obligations upon “proof of payment” of the expenses. Jacqueline Ware challenges the administrative law judge’s conclusion that a carbon copy of a check did not constitute proof of payment and that DSHS was therefore not authorized to collect the obligation. Because Ware has failed to satisfy her statutory burden of demonstrating invalidity and substantial prejudice, we affirm the administrative decision.

FACTS
Jacqueline Ware and Tim Collins are the parents of two minor children. A final child support order entered on November 1, 2007, required Collins to pay, among other amounts, 55 percent of any expenses incurred on behalf of the children for “[v]iolin lessons and any violin rental fee” within 30 days of receiving “proof of payment.” The support order authorized DSHS to collect any unpaid obligation after Ware provided “proof of payment of the expense to DSHS.”

In December 2007, Ware wrote Collins requesting reimbursement of $110 for his share of violin lessons. Ware attached a carbon copy of a check to the letter as proof of payment. After Ware notified DSHS of Collins’ failure to pay, DSHS served Collins with a notice of support owed. Collins objected to the notice and requested an administrative hearing.

Following a hearing at which both Ware and Collins testified, the administrative law judge (ALJ) issued a final order on May 19, 2008.[1] The ALJ determined that under the terms of the 2007 child support order, DSHS’s ability to collect any amounts due was conditioned on Ware providing “proof of payment.” The ALJ concluded that a carbon copy of a check did not constitute proof of payment:

It is proof only that on a given day a person wrote a check. It does not establish that the payee received it or that it was paid through the banking process. A cancelled check (as opposed to a carbon copy of a check), processed by the bank, is proof of payment.

Because Ware had not supplied proper proof of payment, the ALJ ruled that DSHS had no authority to enforce the child support order.

Ware petitioned for judicial review. After filing the documentary record, DSHS advised Ware that the tape recording of the administrative hearing was defective and prevented preparation of a written transcript. The King County Superior Court eventually granted Collins’ motion for a change of venue and transferred the case to Snohomish County Superior Court.

Following a hearing on June 5, 2009, the superior court on review concluded that the ALJ had not committed any errors of law or fact. The court noted that the superior court in the support proceeding had accepted copies of the check front when establishing Collins’ liability for unpaid lessons, but agreed with the ALJ that “providing a copy of the front of a check does not constitute proof of payment.” The court remanded the matter to the ALJ to permit Ware to establish proper proof of payment.[2]

ANALYSIS
The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review of a final administrative order. A reviewing court may grant relief from an agency decision if it finds that the decision (1) violates a constitutional provision on its face or as applied, (2) lies outside the agency’s lawful authority or jurisdiction, (3) arises from an illegal procedure, (4) results from an erroneous interpretation or application of the law, (5) lacks substantial evidence, or (6) is arbitrary or capricious.[3] An appellate court sits in the same position as the superior court and applies the APA standards directly to the administrative record, according no deference to the superior court review.[4] As the party challenging the ALJ’s decision, Ware bears the burden of demonstrating invalidity.[5]

On appeal, Ware contends that the superior court should have remanded the case for a new hearing once DSHS learned that the tape recording of the administrative hearing was defective and that no transcript of the hearing before the ALJ could be prepared. She argues that because judicial review is limited to the record before the agency, the absence of the transcript precludes judicial review as a matter of law. Ware cites no authority to support such a broad assertion.

An agency is required to maintain an official record of each adjudicative proceeding, including the recording of the hearing before the presiding officer.[6] Generally, the record transmitted following a petition for judicial review must include a transcript of the agency proceeding. But the parties may stipulate to an omission or shortening of portions of the record.[7] Before determining a petition for judicial review, the court may remand the matter if the agency “failed to prepare or preserve an adequate record.”[8]

Under the APA, a court may grant relief “only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of.”[9] Generally, meaningful judicial review requires an adequate evidentiary and factual record.[10] But under the circumstances of this case, Ware has not demonstrated that the absence of the transcript of the hearing before the ALJ prevented either the superior court or this court from undertaking a full and fair review.

As Ware concedes, the issue before the ALJ was a narrow one and limited to the determination of whether Ware had provided the requisite “proof of payment” to authorize DSHS to enforce Collins’ obligation. Ware has not assigned error to the ALJ’s relevant findings of fact, and there appears to be no dispute about the evidence that Ware relied on to establish proof of payment.

Ware alleges that the hearing before the ALJ was “confusing and frustrating” and that the ALJ allowed Collins to make disparaging remarks about the trial court, permitted Collins “to ramble about issues and facts not in evidence,” and failed to control the proceedings. But Ware does not identify any specific portion of the oral testimony that was necessary for the relevant issue on judicial review or that demonstrated resulting prejudice. Nor has she identified relevant evidence that was not otherwise included in the documentary record. Under the circumstances, she has not made any showing that the record was insufficient for review or that she was prejudiced by the absence of the verbatim transcript.

Ware next contends that the ALJ misinterpreted the provisions of the 2007 support order when she rejected Ware’s contention that a carbon copy of a check satisfied the “proof of payment” requirement in the 2007 support order. Ware asserts that the superior court in the support proceeding accepted carbon copies to establish Collins’ back support obligation and did not require her to produce copies of cancelled checks as “proof of payment” because it would be an unnecessary burden and unreasonably delay reimbursement. Ware claims that she was therefore entitled to rely on the same proof in the collection proceeding and that the ALJ was “bound by any order and written decision of a superior court.”

The 2007 support order authorized DSHS to collect Collins’ obligation if he failed to reimburse Ware for violin lessons within 30 days of receiving “proof of payment.” But contrary to Ware’s assertion, nothing in the support order purports to define “proof of payment” or expresses the court’s intent to limit any subsequent collection proceeding to a specific method of proof. The fact that the superior court did not require Ware to submit cancelled checks in the support proceeding, without more, is not controlling. Ware does not allege or demonstrate that the superior court made a specific ruling addressing the legal sufficiency of the “proof of payment” or expressed any intent that a specific definition should control a subsequent collection proceeding.

Ware does not challenge or address the substance of the ALJ’s ruling: that a carbon copy of a check duplicate, without more, establishes only the writing of a check, but not the fact that the check was negotiated or that any payment has occurred through the banking system. Given the clear language of the 2007 support order, we find no legal error in the ALJ’s conclusion.[11]

Ware alleges numerous additional errors. Among other things, she asserts that DSHS improperly opposed various motions that she filed in the superior court and filed “frivolous briefs” on Collins’ behalf, that the ALJ erroneously failed to include reimbursement for violin rental fees, and that the superior court erred in refusing to award her costs and fees, in limiting her right to reimbursement, and in conducting a trial de novo. Because Ware fails to support these contentions with any meaningful legal argument or citation to relevant authority, we decline to consider them.[12]

Ware requests an award of unspecified “costs and fees” from DSHS on appeal. Collins requests an award of “damage fees and out of pocket expenses for legal preparation expenses.” Neither party has supported the request with any further argument suggesting a legal basis for the award as required by RAP 18.1(b). Both requests are therefore denied.

Affirmed.

WE CONCUR:

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