Opinion
No. 57155-9-I.
July 3, 2006.
Appeal from a judgment of the Superior Court for King County, No. 00-3-08212-0, Bonnie Canada-Thurston, J. Pro Tem., entered September 27, 2005.
Counsel for Appellant(s), Roger B. Jr. Madison (Appearing Pro Se), 1420 N.W. Gilman Blvd., #2123, Issaquah, WA 98027.
Counsel for Respondent(s), Leigh Ann Madison (Appearing Pro Se), 17911 N.E. 27th Street, Redmond, WA 98052.
Valerie a Villacin, Edwards, Sieh, Smith Goodfriend, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Dismissed by unpublished per curiam opinion.
Roger Madison was found to be in contempt of court and jailed for failure to pay the difference between the original supersedeas bond and the modified amount. He has since paid the modified amount and been released, but appeals the contempt order. Because the contempt order was purged after the court received Roger's payment, we have no effective relief to provide and Roger's appeal is moot.
FACTS
Roger and Leigh Ann Madison were married in 1992 and had a daughter. Roger and Leigh Ann were divorced in 2001. In 2002, Leigh Ann filed a petition for modification of the parenting plan to reduce the amount of time their daughter spent with Roger. The trial court awarded attorney fees of $22,586.89 to Leigh Ann based on her need and Roger's ability to pay under RCW 26.09.140 and on Roger's intransigence during the parenting plan modification proceedings.
Roger appealed the modification order and the award of attorney fees. While the appeal was pending, Roger filed a motion in this court to stay enforcement of the attorney fee judgment without security, claiming he did not have enough money to pay either the judgment or a supersedeas bond. The motion was denied, and Roger filed a supersedeas bond for $27,500 shortly thereafter.
In July 2005, this court affirmed the trial court's modification order and the award of attorney fees to Leigh Ann. This court also awarded Leigh Ann attorney fees on appeal, stating that the amount of the award would be fixed by a commissioner of this court based on Leigh Ann's need and Roger's ability to pay.
Leigh Ann made a motion to the trial court to modify the amount of the supersedeas bond to require Roger to post additional security in the amount of the anticipated award of appellate attorney fees. Roger objected, asserting that the trial court should deny the motion because the appellate attorney fee amount had not yet been fixed by the commissioner. The trial court granted the motion and ordered Roger to deposit an additional $35,142 into the court registry within seven days of the filing of the order.
Roger filed a response to Leigh Ann's motion but in the court's order granting Leigh Ann's motion, it noted that it had received `no objection' from Roger. Roger did not move for reconsideration of the order based on this discrepancy or any other ground.
Roger did not make an additional deposit, and Leigh Ann filed a contempt motion, asserting that Roger had the present ability to comply with the trial court's order but refused to do so. Roger responded that he actually did not have the ability to comply with the order because, although his income was significant, he also had a significant amount of debt.
Shortly after Roger responded to the contempt motion, the court commissioner fixed the award of attorney fees to Leigh Ann at $24,431.77. The commissioner concluded that Roger had the ability to pay that amount based on a review of the financial information submitted by the parties.
The contempt motion was heard on September 2, 2005. The commissioner found that Roger had violated the order to deposit additional funds into the court registry but reserved ordering sanctions until September 27, 2005. The commissioner notified Roger that if he did not deposit additional funds by that date, he could be incarcerated. On September 27, after Roger had failed to pay any additional amount into the court registry, the commissioner ordered Roger to be incarcerated.
Roger was released from jail the following day after stipulating to the issuance of the mandate for the prior appeal in this court, agreeing to release the funds in the court registry to satisfy the trial court's earlier judgment, and paying the appellate attorney fee award of $24,337.46.
Roger now appeals the contempt order, for the reasons discussed below.
ANALYSIS
Mootness
Because Roger is no longer detained and the contempt order has been purged, we can no longer provide relief to him. A case is moot if a court can no longer provide effective relief and if the issues presented therein are only academic. In re Cross, 99 Wn.2d 373, 662 P.2d 828 (1983); State v. Turner, 98 Wn.2d 731, 658 P.2d 658 (1983). Generally, when a case presents only moot issues the appeal is dismissed. Sorenson v. Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972). Roger argues that although his contempt order was purged after he complied with its terms, we should consider the merits of his claim to determine that he is not a contemnor for three reasons.
First, unless this court identifies the contempt order and Roger's incarceration as a violation of his civil rights, he would be precluded from seeking relief against Leigh Ann under 42 U.S.C. section 1983. This argument does not necessitate a review of the contempt order by this court, because even assuming Roger had a section 1983 claim against Leigh Ann, claim preclusion could only occur if we determined that Roger's civil rights were not violated. Concluding that Roger's claim is moot is not equivalent to a determination that the contempt order was constitutional, and therefore, this argument does not persuade us to consider the merits of Roger's claim.
Second, Roger also argues that his claim is not moot because there is still a dispute as to whether Leigh Ann should be awarded attorney fees on this appeal. He relies on Kuehn v. Renton Sch. Dist., 103 Wn.2d 594, 596-97, 694 P.2d 1078 (1985), where the court concluded that a claim alleging a civil rights violation was not moot, even though no effective relief could be provided, because the plaintiff was alleging emotional damages from the violation. But the attorney fees at issue here are not related to the merits of the claim, unlike the emotional damages in Kuehn. Thus, this argument does not compel us to review the merits of Roger's claim.
Third, Roger argues that his appeal represents a matter of continuing and substantial public interest and this court should consider it even if no relief can be provided to him. To determine whether a sufficient public interest is involved, we consider: "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination [that] will provide future guidance to public officers; and (3) the likelihood that the question will recur." In re Cross, 99 Wn.2d 373, 377, 662 P.2d 828 (1983). Roger has not established that any of these factors apply to his claim.
Thus, because Roger has not identified any exception to mootness that applies to his claim, we decline to consider the merits of his appeal because it is moot. While Roger's argument may be valid that contempt was not the appropriate remedy to his refusal to pay the additional supersedeas amount, we note that he did not advance this argument to the trial court. And though the constitutional magnitude of Roger's claims may permit him to raise them for the first time on appeal, we do not need to determine whether he is permitted to raise this argument on appeal because his case is moot and is thereby dismissed.
Attorney Fees
Leigh Ann requests appellate attorney fees under, inter alia, RCW 26.09.140, based on her need and Roger's ability to pay. After reviewing the financial declarations of both parties, we exercise our discretion to award Leigh Ann attorney fees. We direct the commissioner to determine the amount of fees under RCW 26.09.140.
Roger requests costs on appeal under RAP 14.2 as a substantially prevailing party. Because we conclude that Roger's claim is moot and thereby dismiss his appeal, he is not the substantially prevailing party and is not entitled to costs.
For the foregoing reasons, we dismiss Roger's appeal and award Leigh Ann appellate attorney fees.
COLEMAN, DWYER and ELLINGTON, JJ.