Opinion
Nos. 60231-4-I; 60631-0-I.
November 17, 2008.
Appeals from a judgment of the Superior Court for Snohomish County, No. 97-3-00888-5, James H. Allendoerfer, J., entered June 5, 2007.
Affirmed by unpublished per curiam opinion.
In this consolidated appeal, Michaele-Ann Hazen appeals the modification of a parenting plan and an order finding her in contempt. We affirm.
FACTS
When Michaele-Ann Hazen and Daniel Destito divorced in 1997, they had three young children, M.D., T.D., and B.D. The final parenting plan provided for a three-week rotating schedule. The plan also stated that the parents would have joint decision-making authority. As the children grew older, the parties agreed to deviate from the court ordered parenting plan with the children residing primarily with Hazen.
By the fall of 2006, Hazen's relationship with her children had broken down. The police were contacted on three separate occasions in the fall of 2006 to investigate allegations of abuse, theft, and assault at the Hazen household. Child Protective Services (CPS) also conducted an investigation. As a result, Hazen hired Dr. Steven Taylor, a clinical psychologist, to provide counseling to her teenage daughter T.D.
Eventually, the three children each filed CHINS (child in need of services) petitions in juvenile court. Shortly thereafter, Destito filed a motion to modify the parenting plan, alleging that there had been a substantial change in circumstances and the children's environment under the plan was detrimental to their physical, mental, and emotional health. Destito requested that the children reside primarily with him and that he be given full decision-making authority.
A "child in need of services" is defined in RCW 13.32A.030(5).
On December 15, 2006, a commissioner found adequate cause to proceed with the motion to modify. The commissioner appointed a guardian ad litem (GAL), Bridget Llewellyn, and established certain time periods for the children to individually spend time with Hazen. The commissioner also stayed consideration of the CHINS petitions pending resolution of Destito's petition to modify the parenting plan.
The petitions were eventually dismissed.
On January 18, 2007, the commissioner adopted the interim GAL report and ordered that Hazen's visitation with her children be therapeutically supervised by Don Layton. The commissioner also ordered that the children receive counseling from Dr. Taylor, that Hazen obtain a full psychological evaluation, that Destito be granted sole decision-making authority pending further court action, and that both parents complete the teen STEP (Systematic Training for Effective Parenting) class with Deanne Linstrom. In addition, the commissioner ordered that; "The children will be allowed to go to the mother's home to remove their possessions." Hazen's motion for revision of the commissioner's order was denied.
On April 20, 2007, a pro tem commissioner heard a motion by Destito for temporary child support and an order of contempt against Hazen for failure to comply with the January 18 order. The commissioner awarded Destito temporary child support in the amount of $600 per month and found Hazen in contempt for failing to return the children's possessions as previously ordered and interfering with Dr. Taylor's ability to provide counseling to the children. Finding that Hazen's "actions have demonstrated nothing but bad faith on her part," the commissioner imposed a penalty of $10,000 if Hazen did not comply with the court orders. In addition, the commissioner ordered Hazen to pay $2,500 in attorney fees to Destito as well as $100 civil penalty for the contempt.
Hazen moved to revise the order. On review, the trial court upheld the pro tem commissioner's order findings of contempt, but reduced the penalty from $10,000 to $2,500. Hazen's motion to reconsider was denied.
The court held a five day trial beginning on June 13, 2007. At the time of trial, M.D. was 15 years old, T.D. was 13 and B.D. was 12. Hazen and Destito, the GAL, Dr. Taylor, Don Layton, Dr. Stuart Brown, an expert hired by Hazen, and several other witnesses testified.
While the children were not called to testify as witnesses, their hearsay statements to various witnesses were admitted into evidence without objection.
At the conclusion of the trial, the court granted Destito's motion for modification and entered extensive findings of fact. Among other things, the court found that the environment in Hazen's home was detrimental to the children, that her request for police intervention "constituted a gross overreaction," that Hazen engaged in negative, intimidating, and retaliatory behavior directed toward the children, and that she used "age-inappropriate, and sometimes bizarre, disciplinary methods." The court further found that Hazen "effectively sabotaged the children's therapy with Dr. Steven Taylor" and that she "also effectively sabotaged the court-ordered therapeutic visitations with the children by failing to attend any such visitations until June 5, 2007, one week before trial." With regard to Hazen's parenting skills, the court found that she was ill-equipped to deal with her adolescent children.
The modified parenting plan designated Destito as the sole decision maker, set child support at $600 per month, and suspended visitation between Hazen and the children until she engaged in individual therapy with a rehabilitation therapist. The court also denied Hazen's motion for contempt against Destito for having allegedly improper conversations with the children and failing to forward certain school notices.
Hazen appeals the court order finding her in contempt, the decision denying her motion for revision, the court's findings of fact and conclusion of law, and entry of the modified parenting plan.
ANALYSIS
Hazen challenges the modification and contempt findings on numerous grounds, but has cited no authority in support of virtually all of her arguments. This defect is normally fatal on appeal. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Nevertheless, to the extent we can identify claims that are properly raised and argued on appeal, we will address them.
Modification of a final parenting plan is governed by RCW 26.09.260. A court shall not modify a prior parenting plan unless the court finds "that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interests of the child and is necessary to serve the best interests of the child. RCW 26.09.260(1). We will not disturb the trial court's determination of whether a change in circumstances warrants modification absent an abuse of discretion. Lambert v. Lambert, 66 Wn.2d 503, 508, 403 P.2d 664 (1965). A court abuses its discretion if its decision is based upon unreasonable or untenable grounds. In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004). Hazen appears to dispute whether she is responsible for a substantial change in her children's mental and emotional health.
We review the trial court's findings of fact for substantial evidence. In re Marriage of Myers, 123 Wn. App. 889, 893, 99 P.3d 398 (2004). Substantial evidence exists where there is sufficient evidence in the record to persuade a rationale, fair-minded person of the truth of the finding. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
Here the court's findings of fact are clearly supported by the record. And even Hazen's own expert, Dr. Brown, testified that Hazen dwelled in minutiae and needed to change her parenting skills in order for her to have a healthy relationship with her children. The trial court's decision to grant Destito's motion to modify the parenting plan was not an abuse of discretion.
Hazen also assigns error to the trial court's findings of contempt. Whether contempt is warranted in a particular case is within the sound discretion of the court. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). Contempt is defined to include "intentional . . . [d]isobedience of any lawful . . . order . . . of the court." RCW 7.21.010(1)(b). When determining whether the party accused of contempt has intentionally disobeyed an order, the court must strictly construe the order and ascertain whether the facts constitute a plain violation of that order. See In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995).
Hazen contends that, since she was not present when the children sought to retrieve their belongings, she should not be found in contempt simply because they were unable to find what they wanted. But Hazen's argument ignores the finding that the children's items had been moved and hidden elsewhere in the house. Similarly, the record supports the court's conclusion that Hazen's behavior clearly interfered with the children's efforts to receive court-ordered counseling.
Hazen also contends that the trial court abused its discretion when it denied her request to find Destito in contempt. We disagree. Under the "strict construction rule, parties are protected from contempt proceedings based on violations of orders that are ambiguous or unclear. Graves v. Duerden, 51 Wn. App. 642, 647-48, 754 P.2d 1027 (1988). Hazen argues that Destito engaged in improper communications with the children regarding the litigation and her household. The record does not support Hazen's argument. The record also support the trial court's determination that Destito's actions regarding school notices did not constitute contempt.
Hazen argues that the trial court improperly set her child support obligation at $600 per month. We review a child support award, including a decision to deviate from the standard calculation, for abuse of discretion. In re Paternity of Hewitt, 98 Wn. App. 85, 87-88, 988 P.2d 496 (1999); In re Marriage of Casey, 88 Wn. App. 662, 666, 967 P.2d 982 (1997).
Here the trial court did not find Hazen's testimony about her earnings credible. Credibility determinations are not subject to review on appeal. In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003). The trial court adopted the income figures relied on by the court in April 20, 2007 to establish the child support obligations for both parents. Hazen has not shown that the trial court abused its discretion in doing so.
Hazen appears to argue the trial court erred in authorizing the children or Destito, as their designated agent, to inspect and copy the records of the limited liability company (LLC) she established. See RCW 25.15.135(2). But Hazen does not dispute that the children are members of the LLC and that the company was established as a means of investing inherited funds received by the children. Consequently, there is no error.
We affirm the court in all respects. We also grant Destito's request for attorney fees and costs on appeal pursuant to RAP 18.1 and RCW 26.09.140. Upon compliance with the provisions of RAP 18.1, Destito is entitled to attorney fees and costs in an amount to be determined by a commissioner of this court