Opinion
No. 60906-8-I.
January 12, 2009.
Appeal from a judgment of the Superior Court for King County, No. 01-5-00795-6, Jim Rogers, J., entered October 29, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
James Christianson appeals from trial court rulings finding him in contempt for failing to comply with a parenting plan, awarding attorney fees for his failure to serve a responsive pleading on the opposing party's attorney, clarifying future service of process, and refusing to clarify a parenting plan or modify child support. Because Christianson has not demonstrated that the trial court erred or abused its discretion, we affirm.
FACTS
We note initially that both parties have devoted much of their briefs to allegations of misconduct by the other parent, allegations that serve only to waste this court's time. We recite only those facts necessary to address the issues on appeal.
James Christianson and Sederis Wright are the parents of R.C., a daughter born in February 2001. Under the terms of an agreed parenting plan entered on October 29, 2001, R.C. resides with Christianson, except for four weekends per year. Additional residential provisions applied once R.C. began school. For 2007, the parenting plan specified that R.C. was to reside with Wright for the month of August. Wright has lived in California since the entry of the parenting plan.
Beginning in early 2007, the parties filed a series of motions in the trial court. Among other things, Christianson sought a contempt finding, alleging that Wright had violated the parenting plan by not providing sufficient telephone contact during R.C.'s spring break visit. Christianson also petitioned for a modification of child support to require Wright to pay a portion of private school tuition for R.C. Wright also moved for a contempt finding, alleging that Christianson had failed to comply with the residential schedule of the parenting plan.
Following a series of hearings and continuances, the trial court entered the following rulings challenged on appeal: (1) finding Christianson in contempt for failing to comply with the parenting plan and ordering him to make up the five missed days of residential time in 2008; (2) finding that Christianson had failed to serve Wright's attorney with a responsive pleading and awarding $750 in attorney fees because the hearing had to be continued; (3) denying Christianson's motion to clarify the parenting plan; (4) denying Christianson's petition to modify child support to include private school tuition; and (5) clarifying service of process for future proceedings. The trial court entered an order encompassing all of the challenged rulings on October 29, 2007. The court denied Christianson's motion for reconsideration on November 21, 2007.
DECISION
Contempt
Christianson contends that the trial court erred in finding him in contempt for noncompliance with the parenting plan. He argues that the trial court failed to enter the requisite finding of a bad faith violation of a valid court order and that the evidence failed to establish any basis for contempt.
Under RCW 26.09.160(2)(b), the trial court must make a finding of contempt if a parent has acted in bad faith in failing to comply with a parenting plan's residential provisions. Generally, the court must make a specific finding of bad faith or intentional misconduct as a predicate for a contempt judgment. In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). We review the trial court's findings of fact for substantial evidence and determine whether the findings of fact, in turn, support the conclusions of law. In re Marriage of Rideout, 150 Wn.2d 337, 350-51, 77 P.3d 1174 (2003).
RCW 26.09.160(2)(b) provides: "If, based on all the facts and circumstances, the court finds after hearing that the parent, in bad faith, has not complied with the order establishing residential provisions for the child, the court shall find the parent in contempt of court."
Christianson is correct that the trial court did not enter a specific finding that he acted in bad faith. Instead, the trial court found that Christianson was in contempt "for not allowing Syd Wright visitation in early August."
Under the terms of the parenting plan, Wright was entitled to residential time with R.C. for the entire month of August, beginning August 1, 2007. When Wright went to Christianson's residence on August 1, Christianson refused to permit Wright to take R.C. The evidence before the trial court was undisputed that before August 1, Christianson had repeatedly informed Wright that he would not permit her to begin the residential time until August 6, the date on which the court was scheduled to hear Christianson's motion for contempt.
In summary, the evidence was undisputed that Christianson intentionally refused to comply with the terms of the parenting plan. Under the circumstances, the trial court's finding that Christianson did not allow Wright visitation was a sufficient determination of intentional misconduct to support the trial court's contempt finding under RCW 26.09.160(2)(b). See In re Marriage of Davisson, 131 Wn. App. 220, 224, 126 P.3d 76, review denied, 158 Wn.2d 1004 (2006). The trial court did not err in finding Christianson in contempt and ordering as a remedy that Christianson provide five additional days of residential time during the summer of 2008. See RCW 26.09.160(2)(b)(i).
Christianson maintains that he was not in contempt because Wright had agreed, in response to his request, to shorten her scheduled residential time from the entire month of August to August 1 to 15, but then refused to sign his proposed stipulated order. He reasons that there was therefore "no valid court order" to violate. But Christianson does not even allege that Wright agreed to begin the residential time on any date other than August 1, as specified in the parenting plan. Moreover, even if the parties did not reach an agreement about rescheduling, Christianson had no basis to ignore the clear and unambiguous provisions of the parenting plan and unilaterally determine that Wright's residential time could not begin until after the court heard his motion for contempt on August 6.
Christianson's claim that the trial court failed to use the "mandatory" State contempt form merely repeats a challenge to the sufficiency of the trial court's contempt finding that we have already rejected. Christianson's assertion that he was denied his due process rights to a hearing is essentially a challenge to the trial court's resolution of Wright's contempt motion without oral argument. Christianson raised no objection when the trial court announced its intention to decide the motion without oral argument. Nor has he alleged that he was prevented from submitting relevant evidence, that the trial court failed to consider the evidence and arguments submitted, or that he was prejudiced by the absence of oral argument. Christianson has failed to demonstrate a due process violation.
Attorney Fees
Christianson contends that the trial court erred in awarding attorney fees when he served his response to Wright's contempt motion on Wright rather than on her attorney. When Christianson and Wright's attorney appeared on September 21, 2007, to argue the motion, the attorney informed the court that he had not yet received Christianson's pleadings and was therefore unable to respond. The court continued the motion, but ordered Christianson to pay $750 in attorney fees. The court eventually decided the motion without oral argument and found Christianson in contempt.
The trial court found that Wright's attorney had appeared in the action and that the action could not continue because Christianson had not provided his response to the attorney. These findings are not challenged on appeal. Consequently, Christianson was required to serve his response on Wright's attorney. See CR 5(b)(1).
We review the trial court's imposition of terms for failure to comply with the court rules for an abuse of discretion. See Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 133, 896 P.2d 66 (1995); see also In re Firestorm 1991, 129 Wn.2d 130, 139, 916 P.2d 411 (1996) (trial court may impose appropriate sanctions under inherent authority to control litigation). The trial court's award of $750 is consistent with the attorney's hourly rate and the time that he spent to appear at the September 21 hearing. Christianson has not made any showing that the amount of the trial court's award was unreasonable. The trial court did not abuse its discretion in awarding attorney fees.
Clarification of the Parenting Plan
Christianson contends that the trial court erred in refusing to clarify the parenting plan by specifying that he has a right to telephone contact with R.C. whenever she is residing with Wright. The trial court denied Christianson's request, concluding that the requested provision would be a modification rather than a clarification.
The court may change a parenting plan by agreement, by petition to modify, and by temporary order. In re Marriage of Christel, 101 Wn. App. 13 1 P.3d 600, 22, (2000). In order to modify a parenting plan, the court must find a "substantial change in circumstances," even if the modification is minor. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 807, 929 P.2d 1204 (1997); RCW 26.09.260(1), (4). A "modification" occurs "when a party's rights are either extended beyond or reduced from those originally intended." Christel, 101 Wn. App. at 22. A "clarification" is "`merely a definition of the rights which have already been given and those rights may be completely spelled out if necessary.'"Christel, 101 Wn. App. at 22 (quoting Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969)).
Paragraph 3.13 of the parenting plan provides that Wright is entitled to "reasonable telephone contact" with R.C., but contains no provision for telephone contact between Christianson and R.C. while R.C. is residing with Wright. Christianson argues that the trial court should have construed paragraph 6.5, which requires each parent to maintain "unhampered reasonable contact and communication" between the child and parent, to include telephone contact.
In its oral decision, the trial court noted that Christianson's motion for clarification arose out of R.C.'s most recent residential visit with Wright. The trial court found that Christianson had had telephone contact with R.C. during this visit on 6 out of 9 days and that the communication and contact was reasonable under the parenting plan:
I do not find that the . . . contact was unreasonable, but I know that it did include telephone contact and reasonable communication. It could include telephone contact. It could include a number of ways of contacting and telephone is the usual method for children of this age to talk to the, to the parent who does not have the child at the time.
The trial court then noted that its comments provided the parties with some guidance for future visits.
Christianson has not challenged these findings or made any showing that further clarification of the parenting plan was necessary. Consequently, he has not demonstrated that the trial court erred or abused its discretion in denying Christianson's motion to clarify the parenting plan's provisions on telephone contact. Because we affirm the trial court on this basis, we need not decide, for purposes of this appeal, whether Christianson's proposed changes would be a clarification or modification.
Private School Tuition
Christianson next contends that the trial court erred in denying his petition to modify child support. He argues that the court should have required Wright to pay a portion of private school tuition for R.C., who at the time of the trial court's ruling had just completed kindergarten in a public school.
Generally, a court may modify child support provisions only if the moving party demonstrates a "substantial change of circumstances." RCW 26.09.170(1); see In re Marriage of Leslie, 90 Wn. App. 796, 802, 954 P.2d 330 1998). We will not reverse the trial court's determination of whether a change in circumstances warrants modifying child support absent an abuse of discretion. In re Marriage of McCausland, 159 Wn.2d 607, 616, 152 P.3d 1013 (2007).
Under certain circumstances, the trial court may order a parent to pay a proportionate share of a minor child's private school tuition. See In re Marriage of Stern, 57 Wn. App. 707, 720, 789 P.2d 807 (1990). But "[w]here acceptable public schools are available, and there is no showing of special circumstances justifying the need for private school education, the noncustodial parent should not be obligated to pay for the private education of his or her minor children." Stern, 57 Wn. App. at 720. In considering whether to order payment of private school tuition, the trial court should consider all relevant factors, including "family tradition, religion, and past attendance at a private school." Stern, 57 Wn. App. at 720.
Here, the trial court acknowledged that R.C. was reading at an advanced level and that she had been accepted by the Seabury School, a school for "highly capable children." But Christianson did not submit any evidence documenting the nature of R.C.'s academic needs or identify any specific evidence suggesting that R.C.'s current school was not appropriate for her future needs, which necessarily involve more than just her current reading ability. Nor has he alleged the presence of any of the relevant Stern factors that might justify an award of private school tuition. See In re Marriage of Vander Veen, 62 Wn. App. 861, 866, 815 P.2d 843 (1991) (private school tuition justified based on family tradition, the parents' agreement, and the children's prior attendance of private school). Under the circumstances, Christianson has failed to demonstrate any error or abuse of discretion in the trial court's refusal to modify child support.
Future Service of Process
Finally, Christianson contends that the trial court erred in clarifying how the parties should serve pleadings in the future. In its October 29, 2007, order, the court specified that original service of a new action should be directed to Wright's current designated agent and that once an attorney enters an appearance, the attorney's business mailing address is sufficient for service. Among other things, Christianson claims that he should be able to serve Wright at the address listed in her pleadings.
As the trial court noted, the parties' bickering about service of process has wasted an enormous amount of resources over the years and the clarification was entered at Christianson' specific request. The court's clarification is also consistent with the 2001 parenting plan, which limited Christianson's contact with Wright and specified that Wright was to designate a person for service of process. Christianson has not cited any authority supporting his claim that the trial court's clarification was error. Nor has he identified any prejudice resulting from the ruling. We therefore decline to consider the issue further. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate court will not consider issues unsupported by adequate argument and authority).
Christianson's request for an award of costs on appeal is denied.
Affirmed.