Opinion
No. 28124-8-III.
Filed: June 21, 2011. Unpublished Opinion
Appeal from a judgment of the Superior Court for Grant County, No. 08-3-00262-4, Melissa K. Chlarson, J. Pro Tem., entered April 17, 2009.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney and Siddoway, JJ.
Pro se, Stephen Slane appeals two child-support contempt orders issued by Grant County Court Commissioner Melissa Chlarson. He contends court bias; lack of jurisdiction; insufficient evidence of contempt; inequity; improper judgment amount; and improper notice of presentment. We reject his contentions, and affirm.
FACTS
Nuthavadee Kukes and Mr. Slane were married in 1994. During the marriage they had two daughters, ES and PS. In December 2000, Mr. Slane relocated to St. Louis, Missouri. The children then lived with their mother. The couple's divorce was final in January 2002. Ms. Kukes was the primary residential parent. Mr. Slane was ordered to pay $878 monthly child support. The parties signed two out-of-court child support agreements. In August 2003, the parties agreed to reduce monthly child support to $500. In February 2004, the parties agreed to increase monthly child support to $600. From June 2005 until June 2008, ES resided with Mr. Slane in Missouri.
In August 2008, when PS failed to return from a visit with Mr. Slane, Ms. Kukes moved for contempt for his failure to comply with the parenting plan and separately moved for contempt of the child support order. Ms. Kukes requested $68,040 for back child support calculated from their divorce date. Mr. Slane responded with evidence of around $28,000 in child support payments, the parties' out-of-court agreements, and other materials he claimed showed Ms. Kukes' admission of a lesser amount due.
On September 26, 2008, the court heard the show-cause argument. After disposing of the parenting plan violation, the court stated, "I'm reserving a finding of contempt on child support until I can more thoroughly review the documents contained within the court file." Report of Proceedings (RP) (Sept. 26, 2008) at 35.
In March 2009, Ms. Kukes filed a second motion and declaration for contempt to update the amount owing since the first contempt request. Mr. Slane admits that he did not make any of these payments. On March 27, 2009, the trial court decided both contempt motions against Mr. Slane. The court explained it had been through every document filed by the parties and had reduced the judgment amount to reflect the payments actually made by Mr. Slane and the parties agreements; it calculated $35,076 due. It reasoned out the method for calculating a further reduction for a split-custody period, later accepting a further $9,000 reduction for the split-custody period to reach $26,076 on the first contempt motion. The court ordered a $9,700 judgment on the second motion that required no reductions.
Mr. Slane appealed both contempt orders for failure to pay child support.
ANALYSIS A. Bias
Mr. Slane contends the trial court was biased and appeared unfair, violating his due process right by failing to recuse. We review a trial court's denial of a recusal motion for abuse of discretion. Wolfkill Feed Fertilizer Corp. v. Martin, 103 Wn. App. 836, 840, 14 P.3d 877 (2000).
Under RAP 2.5(a), an "appellate court may refuse to review any claim of error which was not raised in the trial court." In re Marriage of Wallace, 111 Wn. App. 697, 705, 45 P.3d 1131 (2002). But an error claim may be raised for the first time on appeal if it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). Mr. Slane cites to United States v. Scuito, 531 F.2d 842 (7th Cir. 1976) for the rule "the right to a tribunal free from bias or prejudice is based on the Due Process Clause." Br. of Petitioner at 15. "A party claiming bias or prejudice must, however, support the claim; prejudice is not presumed." State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996).
"The appearance of fairness doctrine seeks to ensure public confidence by preventing a biased or potentially interested judge from ruling on a case." In re Marriage of Meredith, 148 Wn. App. 887, 903, 201 P.3d 1056 (2009) (citing State v. Carter, 77 Wn. App. 8, 12, 888 P.2d 1230 (1995). "To prevail under the appearance of fairness doctrine, the claimant must provide some evidence of the judge's . . . actual or potential bias." Wallace, 111 Wn. App. at 706 (citing State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885 (1999)).
Mr. Slane presents no bias evidence. He argumentatively and speculatively asserts bias because the commissioner attended the same law school as Ms. Kukes' attorney. Ms. Kukes' attorney declared he was unaware of such information until Mr. Slane's assertions, did not know the commissioner from law school, and had no private relationship with her. In sum, Mr. Slane fails to show any potential bias, let alone actual bias. Accordingly, we reject his bias contention.
B. Jurisdiction
The issue is whether the trial court's failure to enter judgment on the first contempt motion within 90 days renders the judgment void for loss of jurisdiction.
While Mr. Slane did not raise this issue below, a claim of error may be raised for the first time on appeal if it involves lack of trial court jurisdiction. RAP 2.5(a)(1).
RCW 2.08.240 provides:
Every case submitted to a judge of a superior court for his decision shall be decided by him within ninety days from the submission thereof: PROVIDED, That if within said period of ninety days a rehearing shall have been ordered, then the period within which he is to decide shall commence at the time the cause is submitted upon such rehearing, and upon wilful failure of any such judge so to do, he shall be deemed to have forfeited his office.
Judgments not rendered within 90 days after the trial or hearing are "not void, and that the court [does] not lose jurisdiction by reason of delay." Moylan v. Moylan, 49 Wash. 341, 344, 95 P. 271 (1908). Moreover, there is no showing of a "willful failure" on the part of the court to decide the first contempt within 90 days. Accordingly, Mr. Slane's challenge under RCW 2.08.240 fails.
C. Contempt Evidence Sufficiency
Mr. Slane contends the evidence is insufficient to support a contempt finding. We review a contempt finding for an abuse of discretion. State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973 P.2d 1062 (1999) (citing In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995)). A finding of contempt will be upheld on review if the appellate court finds the order is supported by a proper basis. Id. (citing State v. Hobble, 126 Wn.2d 283, 292, 892 P.2d 85 (1995)).
RCW 26.18.050(1) partly provides:
If an obligor fails to comply with a support or maintenance order, a petition or motion may be filed without notice under RCW 26.18.040 to initiate a contempt action as provided in chapter 7.21 RCW. If the court finds there is reasonable cause to believe the obligor has failed to comply with a support or maintenance order, the court may issue an order to show cause requiring the obligor to appear at a certain time and place for a hearing, at which time the obligor may appear to show cause why the relief requested should not be granted. A copy of the petition or motion shall be served on the obligor along with the order to show cause.
RCW 7.21.010(1), in turn, partly provides:
(1) "Contempt of court" means intentional:
. . .
(b) Disobedience of any lawful judgment, decree, order, or process of the court.
Here, the trial court's unchallenged findings regarding the first contempt order, verities on appeal, show Mr. Slane failed to pay according to the January 28, 2002 court order. The court detailed specific time periods when the violations occurred and explained Mr. Slane's ability to comply, detailing his income and monthly living expenses and calculating a sum sufficient to meet his child support obligation. In updating the second contempt order, the trial court made similar unchallenged findings, except it found in paragraph 2.5, "He has completely failed to comply in the past." Clerk's Papers at 146.
We presume a trial court's judgment is correct. Smith v. Shannon, 100 Wn.2d 26, 35, 666 P.2d 351 (1983) (citing Mattice v. Dunden, 193 Wash. 447, 450, 75 P.2d 1014 (1938)). "In particular, 'when the language of findings is equivocal and susceptible of . . . another construction, the findings will be given that meaning which sustains the judgment, rather than one which would defeat it.'" Id. (quoting Shockley v. Travelers Ins. Co., 17 Wn.2d 736, 743, 137 P.2d 117 (1943)). The March 27, 2009 record amply explains the court's factual and equitable reasons for judgment. Moreover, the judgment is sustainable because "agreements between parents regarding modification of prospective child support are invalid as against public policy." In re Marriage of Watkins, 42 Wn. App. 371, 373-74, 710 P.2d 819 (1985) (citing Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984)). "'A child's custodian receives support money as a trustee and not in his or her own right.'" Id. at 373 (quoting Fuqua v. Fuqua, 88 Wn.2d 100, 105, 558 P.2d 801 (1977)).
In sum, we reject Mr. Slane's claim that contempt was unjustified. At this juncture we acknowledge Mr. Slane's further concern that the court was inequitable in its judgment. The record clearly establishes the court's proper exercise of discretionary equitable powers by giving credit to Mr. Slane for the parties' agreements and the split custody situation. Mr. Slane argues the trial court should have given more consideration to Ms. Kukes' delay in bringing the action and the e-mails he construes as admissions by Ms. Kukes. We review an exercise of discretion for an abuse of discretion. Wilhelm v. Beyersdorf, 100 Wn. App. 836, 848, 999 P.2d 54 (2000). We cannot say the court abused its broad discretion in applying equitable principles.
D. Judgment Amount
The issue is whether substantial evidence supports the trial court's findings. If substantial evidence supports the trial court's findings of fact, we will not disturb them on appeal. State v. Black, 100 Wn.2d 793, 802, 676 P.2d 963 (1984) (citing Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 638 P.2d 1231 (1982)). "Even where the evidence conflicts, a reviewing court must determine only whether the evidence most favorable to the prevailing party supports the challenged findings." Id. (citing North Pac. Plywood, Inc. v. Access Road Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981)).
Ms. Kukes initially argues Mr. Slane failed to assign error to the trial court's findings of fact. However, Mr. Slane did assign error to the trial court's failure to enter written findings consistent with her oral ruling. Even so, our review of the court's March 27, 2009 oral ruling leads us to conclude the judgment amounts shown in the final papers accurately reflect the court's expressed intent.
While Ms. Kukes acknowledges a scrivener's error in overlapping the end of the first contempt period and the beginning of the second contempt period of a month or two, the numbers shown accurately reflect those given orally by the court on March 27. The court detailed it "did a thorough review of all the records" before announcing its decision. RP (Mar. 27, 2009) at 5. The court next determined split custody existed close to three years exactly and noted that would possibly "change my numbers." Id. at 6. The court in great detail examined Mr. Slane's "paper trail" of checks and deposits and explained it "charted out every single one of those from 2002" until they stopped. Id. at 7, 8. The court in equity explained it accounted for the parties' child support reduction agreements and explanatory e-mails in her calculations departing from the court ordered $878 monthly payments. The court, giving dates and amounts, found "the amount outstanding would be $35,076." Id. at 9.
Next, the court in equity addressed the split-custody reduction and noted, "[I]t's kind of hard for the court to determine what that should be." Id. at 9-10. But after colloquy with Mr. Slane and Ms. Kukes' counsel, the court reasoned, "[I]t would seem to make sense that transfer just be split in half during that time which appears to be during the — well, 500 and $600 transfer payment timeframe." Id. at 10. The court ultimately accepted a $9,000 equitable adjustment for split custody to reach a $26,076 judgment ($35,076 — $9,000 = $26,076). CP at 152.
Given this record, substantial evidence supports the trial court's findings of fact. No issue is raised regarding the judgment amount for the second contempt order.
E. Notice of Presentation
Mr. Slane contends the contempt order is invalid because it was entered in violation of CR 54(e)-(f) because he did not receive notice of the orders and that he was prejudiced. The parties dispute whether proper notice of presentation was given. Final presentation was bumped one week due to the court's illness.
CR 54(e) and (f) partly provide:
(e) Preparation of Order or Judgment. The attorney of record for the prevailing party shall prepare and present a proposed form of order or judgment not later than 15 days after the entry of the verdict or decision, or at any time as the court may direct.
(f) Presentation.
. . . .
(2) Notice of Presentation. No order or judgment shall be signed or entered until opposing counsel have been given 5 days' notice of presentation and served with a copy of the proposed order or judgment unless:
(A) Emergency. An emergency is shown to exist.
(B) Approval. Opposing counsel has approved in writing the entry of the proposed order or judgment or waived notice of presentation.
(C) After Verdict, etc. If presentation is made after entry of verdict or findings and while opposing counsel is in open court.
Failing to give notice under CR 54(f)(2) generally renders a judgment invalid. Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986). But such a judgment is valid unless the complaining party shows resulting prejudice. Id. A party alleging injury is not prejudiced if it is able to timely appeal and argue any issues it wishes to raise. Id. at 352-53; Soper v. Knaflich, 26 Wn. App. 678, 681, 613 P.2d 1209 (1980). Under this standard, Mr. Slane does not show prejudice. He has been able to timely appeal and has not been precluded from arguing any issues. We conclude the order is valid.
F. Attorney Fees
Ms. Kukes, as prevailing party, is entitled to attorney fees on appeal pursuant to RCW 26.18.160.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SIDDOWAY, J. and SWEENEY, J., Concur.