Opinion
No. 57040-4-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for Whatcom County, No. 97-3-00675-9, Ira Uhrig, J., entered September 9, 2005.
Counsel for Appellant(s), David Blakely Hunter, Attorney at Law, 103 E. Holly St Ste 519, Bellingham, WA 98225-4728.
Counsel for Respondent(s), Michael Jeffrey Andrews, Cogdill
Nichols Rein Wartelle Andrews, 3232 Rockefeller Ave, Everett, WA 98201-4317.
Patrick L. Vail, Cogdill Nichols Rein Wartelle Andrews, 3232 Rockefeller Ave, Everett, WA 98201-4317.
Affirmed by unpublished per curiam opinion.
Geris Allan challenges the contempt order entered against her for willfully engaging in a pattern of delaying or obstructing David Allan's residential time with their daughter. Because the record adequately supports the trial court's order, we affirm.
FACTS
David and Geris Allan dissolved their marriage in 1997. The trial court entered a parenting plan on August 8, 2000, providing for the care of their child Gabrielle Allan, known as Belle, born in 1995. Geris moved with Belle to Minnesota and enrolled her in school. David, who remains in this state, is entitled to visit with Belle for at least five days each month, one out of every four months to be in Minnesota. He is supposed to give Geris 30 days written notice of his intended visitation schedule. The plan provides in relevant part:
3.2 SCHOOL SCHEDULE
Upon enrollment in school, the child shall reside with the mother, except for the following days and times when the child will reside with or be with the other parent: . . .
If it is financially practicable, the father shall have an extra, separate visit of one weekend per month in the child's home state. When possible, preference should be given to scheduling the weekend visit on extended weekends off from school to maximize the child's opportunity to maintain a strong emotional tie with her father.
. . .
If the parents reside outside of a reasonable commute for the developmental level of the child, the father may have five days per month. The father will take the child to school when visiting with her in her location. Visitation shall be three months out of each four in Washington and the fourth month in the child's home state. The father shall provide the mother with thirty days prior written notice of his intended visitation schedule.
. . .
3.4 SCHEDULE FOR SPRING VACATION
The child shall reside with the mother during spring vacation, except for the following days and times when the child will reside with or be with the other parent.
The father shall have spring vacation if the mother resides in a different state.
. . .
3.5 SUMMER SCHEDULE
Upon completion of the school year, the child shall reside with the mother, except for the following days and times when the child will reside with or be with the other parent:
. . .
If the parents reside outside a reasonable commute for the developmental level of the child, the father shall have a visit of one full week in June, two full weeks in July, and one full week in August.
Prior to the summer of 2004, summer visitation shall not be expanded. At that time there may be incremental expansion of summer visitation time between the father and child not to exceed six weeks. The parties will revisit this provision if this provision interferes with Belle's schooling.
The father shall have spring vacation if the mother resides in a different state.
The plan provides that Belle will spend Thanksgiving with David in odd years and divides Belle's time over the Christmas and the New Year holidays between the parents. The plan also requires the parties to submit to mediation by a Bellingham doctor, with costs to be shared jointly, to resolve disputes relating to implementation of the plan. It also provides a warning that violations of the residential provisions with actual knowledge is punishable by contempt of court.
On October 3, 2001, the trial court entered an order clarifying the parenting plan stating that the plan does not provide for additional time for travel between the residences of the father and child and that the period of spring break visitation shall be seven days, from Saturday to Saturday.
On July 13, 2005, David filed a motion contending that Geris should be held in contempt for withholding visitation. In particular, David alleged in his supporting declaration that Geris moved with Belle from Minnesota to Wisconsin without providing proper notice of relocation and alleged that Geris had interfered with his attempts to spend time with Belle on several occasions between September 2004 and July 2005. Geris filed a declaration responding to each of David's allegations contending that each problem resulted from David's failure to give adequate notice of his intended visitation schedule or demanding more time than he was allowed under the parenting plan.
At a hearing on August 5, 2005, the trial court found Geris in contempt and awarded David four weeks of uninterrupted residential time during the rest of the summer, attorney fees and statutory contempt sanctions. Geris asked the court to be specific about the conduct for which she was being held in contempt. The court responded:
It would be difficult to recount the specific dates. I'm finding there is an overall pattern of defying the respondent's right to exercise his visitation. In terms of drafting an order, if the respondent presents an order with specific dates, I will review it to see if that's consistent with my review of the file. I will review it again if the parties aren't agreed. My concern isn't so much the specific dates and my concern is really nothing but giving some sort of normalized visitation established and that what the Court believes to be a pattern of frustration of the efforts of the respondent to exercise his visitation occasioned by the acts of the petitioner who seems to be acting, for lack of a better and more articulate way of demonstrating this, seems to be acting as though she is holding the cards.
. . .
And I am adopting the father's interpretation of the facts surrounding the providing the notice more so than the mother's in this case. But, yes, always parties must provide proper notice and the four-week visitation for August that may be an exception to that. I'm ordering that and the parties can work together as far as setting up what dates that's going to be.
At a hearing on September 9, 2005, counsel for Geris refused to agree to David's proposed order because it did not include specific findings of violations of the parenting plan. The trial court stated:
Well, in essence, I was adopting the conduct complained of by the respondent with regard to the areas of complained contempt. I will therefore sign the order. The other option is we could get a special setting and I could go over in detail item by item from the respondents, moving party, and make a determination on each specific item. But I hoped that wouldn't be necessary. I was essentially adopting the position taken by the respondent in that regard. I'm going to sign the order. . . .
The trial court then entered the order stating that Geris "intentionally failed to comply with" the parenting plan, particularly, The mother's conduct fits an overall pattern of delaying or obstructing visitation. The court finds that this pattern is willful conduct on the part of the mother. This pattern of obstruction includes the incidents surrounding the September 2004 visitation, and the mother's obstruction of the 3/31/05 weekend visit contemplated by Section 3.2, lines 24 through 28 of the parenting plan entered August 28, 2000. This pattern also includes the mother's failure to properly notify father prior to moving the child to another state.
Geris appeals. David requests attorney fees on appeal.
ANALYSIS
A trial court's decision on contempt will not be disturbed on appeal absent abuse of discretion. Where, as here, the trial court weighs competing documentary evidence to make credibility determinations and a factual finding of bad faith or willful conduct demonstrating contempt of court, we review the trial court's factual findings for substantial evidence and determine whether the findings support the conclusions of law. A parent seeking a contempt order must demonstrate the contemnor's bad faith by a preponderance of the evidence. Parents are deemed to have the ability to comply with orders establishing residential provisions and a noncomplying parent has the burden of demonstrating by a preponderance of the evidence that he or she lacked the ability to comply with the parenting plan or had a reasonable excuse for noncompliance.
In re Marriage of James, 79 Wn. App. 436, 439-440, 903 P.2d 470 (1995).
In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003).
In re James, 79 Wn. App. at 442.
See RCW 26.09.160(4).
Geris essentially contends that the trial court erred by not making adequate written findings to support its contempt order. She primarily relies on cases involving contempt orders under RCW 7.21.050. These cases are not directly on point. The relevant statute under which the trial court was proceeding is RCW 26.09.160(2). This statute provides for make-up residential time as a remedy for a parent's failure to comply with a parenting plan in bad faith. To support a contempt order under this statute, the trial court must make a specific finding of bad faith or willful conduct. Here, the court made that finding. The order finds that Geris "intentionally failed to comply with a lawful order of the court," and that her conduct "fits an overall pattern of delaying or obstructing visitation."
Templeton v. Hurtado, 92 Wn. App. 847, 965 P.2d 1131 (1998) (trial court imposed punitive jail term for direct contempt under RCW 7.21.050); State v. Hobble, 126 Wn.2d 283, 892 P.2d 85 (1995) (same).
Geris nevertheless contends that the order is deficient because it does not identify the specific conduct that the court considered to be contemptuous, as necessary to facilitate appellate review. There is some merit to this contention. The order, as submitted by David and signed by the court, is not well drafted. For example, the written findings refer to a "3/31/05 weekend visit" although David did not make any claim or argument regarding a visit on that date. Also, the written findings mention the mother's failure to notify the father of her recent move from Minnesota to Wisconsin as part of the "overall pattern of delaying or obstructing visitation," even though David did not claim that the relocation interfered with his visitation, and nothing in the court's oral ruling indicates that the trial court considered the relocation as a basis for the contempt finding.
Nevertheless, this court may look to the trial court's oral findings to determine whether a contempt order is properly supported. It is clear from the oral ruling that trial court reviewed the documentary evidence presented by both parties, and made credibility determinations. Based on our review of that ruling and the documents presented to the trial court, we are satisfied that the record supports the finding that Geris engaged in a willful pattern of delaying or obstructing David's visitation.
In re Marriage of James, 79 Wn. App. 436, 441, 903 P.2d 470 (1995) (reversing contempt orders where written orders did not contain specific findings of bad faith or intentional misconduct and there was no oral order from which appellate court could ascertain whether trial court made such a finding, because trial court must make specific finding that parent acted in bad faith or committed intentional misconduct to enter contempt order pursuant to RCW 26.09.160); In re Marriage of Davisson, 131 Wn. App. 220, 223, 225,126 P.3d 76 (2006) (written finding that mother 'intentionally failed to comply with a lawful order of the court,' in addition to trial court's oral finding that school was 'clearly Christian,' supported contempt order for mother's unilateral placement of child in particular school over father objection where parenting plan provided for joint decision making on education and religious issues).
On several occasions when David did not give the full 30 days notice of his intended visitation schedule, Geris proceeded as if David had forfeited his right to visit during that month. For example, on February 8, 2005, Geris received a request that David be allowed visitation in the last week of February and the first week of March when Belle would be on a school break. David offered to pay the transportation costs because he was late in giving notice. Geris did not respond promptly and when she did, she refused to agree to the visit solely because of David's delay in giving notice. She did not indicate that she had made other specific plans for Belle during that time. David did not have a March visit.
The events surrounding the September 2004 visitation request fit the same pattern. David gave notice on September 2 for a visit in Minnesota from September 24 to 27. Geris responded by e-mail on September 8, "The Parenting Plan says you are to give '30 days notice'" and "Belle will not be available to you to visit in September. We have plans. You don't get to make up the rules as you go." Then, in an e-mail dated September 15, Geris stated that she would be at the school to pick up Belle "on the 24th," that she would call the police if Belle was not there, and that she would get a restraining order if David came to her house. "They are not fond of 'tough-guy' cowboys here in Minnesota. You might consider talking to your attorney and getting something in writing from the judge to show to the nice officers." The trial court was not obliged to believe Geris' efforts to explain away these threatening comments.
The trial court found that Geris had the ability to comply with the parenting plan because the "Father had made arrangements for long-distance visitation, including travel arrangements, with reasonable notice." Geris challenges this finding. She contends that any notice less than 30 days cannot be reasonable under the parenting plan. "Such a ruling would entirely eliminate the mother's ability to enforce the requirement and would result in an interpretation of the notice requirement not consistent with the plain language of the order." But the trial court, not Geris, has the authority to enforce the parenting plan. To resolve disputes related to the implementation of the parenting plan, the plan provides the remedies of mediation with the right of review by the court, or contempt proceedings. Nothing in the parenting plan justified Geris in believing that she can unilaterally deny David all residential time in a particular month based solely on his failure to provide 30 days notice.
Brief of Appellant at 26.
See, e.g., In re Marriage of Davisson, 131 Wn. App. 220, 126 P.3d 76 (2006) (where parenting plan provided for joint decision making regarding education and religion and required mediation for dispute resolution, mother properly held in contempt for unilaterally placing child in particular school despite her belief that her choice did not require joint approval.)
The key inquiry before the trial court was whether Geris, without a reasonable excuse, willfully interfered with David's obligation to spend residential time with Belle. The documentary evidence reviewed by the court supports its determination that Geris was "acting as though she is holding the cards" and was "defying the respondent's right to exercise his visitation." Thus, the contempt order is adequately based on incidents representing a willful obstruction of David's visitation.
RCW 26.09.160(1) ('An attempt by a parent . . . to hinder the performance by the other parent of duties provided in the parenting plan, shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court. . . .')
Geris also challenges the adequacy of the findings to support the trial court's calculation of the amount of make-up time awarded to David as a sanction for her contempt. She asks that we remand for the trial court to calculate the days with exact precision, and to give her make-up time for any days that were erroneously awarded to the father.
The make-up time awarded to the father was for approximately the same amount of time that he requested. Apparently, that make-up visitation has already occurred. David requested the four weeks in August not only as a sanction for the obstructed visitation, but also under a provision in the parenting plan that contemplates incremental expansion of his summer visitation time up to six weeks. Under these circumstances we are unable to see how the strict calculation that Geris requests could result in anything more than de minimis relief, even assuming that make-up time to the other parent is a correct remedy for an error in calculation. We decline the request for a remand to recalculate the time.
Finally, Geris assigns error to a portion of the contempt order in which the trial court interpreted the 30 day notice requirement as applying only to the regular five-day per month visitation schedule:
Both parties are to follow the parenting plan to the letter as it relates to visitation. As to notice requirements for visitation, the parenting plan is read such that the 30 day notice requirement contained in Section 3.2 pertains only to that particular paragraph referencing the five day per month visitation during the school schedule. Other visitation notices must be reasonable.
Geris contends that this amounts to an improper advisory opinion, violative of her right to due process, because it was not an issue raised by David's motion and it was not germane to the issues the court decided.
At the hearing in August 2005, David argued repeatedly about whether the 30 day notice requirement applied to all visits or just monthly five day visits. Geris acknowledged that the parenting plan was not crystal clear on this point. Clearly, the scope of the 30 day notice requirement was before the court. The conditions for purging the contempt require strict compliance with the parenting plan and include a $200 per day sanction against the mother for "every day in the next 12 months for which visitation is denied and otherwise authorized under the parenting plan." Thus, it was important that the lack of clarity be resolved. We conclude that the challenged portion of the order does not constitute an advisory opinion or a violation of due process.
David requests attorney fees on appeal under RAP 18.1, RCW 26.09.160(1) and (2)(b)(ii) as well as RCW 26.09.140. RCW 26.09.160(2)(b) provides, "Upon a finding of contempt, the court shall order: . . . (ii) the parent to pay, to the moving party, all court costs and reasonable attorneys' fees incurred as a result of the noncompliance. . . ." Although the statute does not speak directly to attorney fees on appeal, "a party is entitled to an award of attorney fees on appeal to the extent the fees relate to the issue of contempt."
In re Rideout, 150 Wn.2d at 359.
David is entitled to an award of attorney fees on appeal, subject to compliance with RAP 18.1. The determination of what amount is reasonable will take into consideration that the complexity of the case, and the amount of attorney's fees incurred on both sides, results not only from noncompliance by Geris but also from the lack of specificity in the order drafted by David.
Affirmed.