Opinion
No. 58591-6-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 93-3-05046-5, Steven C. Gonzalez, J., entered May 11, 2006.
Affirmed by unpublished per curiam opinion.
Todd Hodgen filed a motion seeking revision after a court commissioner denied his motion for an order of contempt against his ex-wife, Dawn Hodgen (now Lano), for failing to comply with the parties' parenting plan. Because the record supports the determination that the children's feelings toward Hodgen were based on their own relationship with him, the trial court did not err in upholding the commissioner's decision that a finding of contempt was not appropriate. We affirm the denial of the motion for revision.
Hodgen and Lano divorced and the trial court filed a parenting plan in 1994, when the parties' three sons were 4, 6, and 12 years old. In his declaration, Hodgen alleged that Lano picked the boys up from day care on three occasions in 1999 when he was supposed to pick them up, preventing him from exercising his visitation rights. Hodgen also stated that as the result of Lano's consistent refusal to allow the boys to spend time with him, he had not had any residential time since 1999, although he has seen one or more of the boys occasionally.
Hodgen also noted in his declaration that he dropped off a Christmas card in 2001 and received the card back, ripped into pieces, in an envelope addressed to "sperm donor (Todd)." At another time, Hodgen received an envelope stating, "SWH and my mom loves [sic] me, you don't." Inside the envelope was a letter stating,
You lied to me[.] You broke all you're [sic] promises and you mentally abused me[.] I will hate you for the rest of my life. When you insult my mother you are insulting me because in all reality she raised me. No matter how much you think you helped the only thing you helped with is trying to make me insane. You are not my dad! (greg is)
Sincerely Jason.
Punishment of a parent for contempt of court is within the sound discretion of the trial court, and we will not disturb the trial court's finding absent an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). "A trial court abuses its discretion by exercising it on untenable grounds or for untenable reasons." James, 79 Wn. App. at 440 (citing In re Marriage of Mathews, 70 Wn. App. 116, 127, 853 P.2d 462 (1993)). This court reviews the trial court's findings of fact and determines whether the findings support the conclusions of law. Mathews, 70 Wn. App. at 893.
In this case, the trial court commissioner made written findings of fact and conclusions of law in the order denying the motion for contempt. These findings state that Hodgen's pleadings failed to demonstrate contempt, and that Hodgen failed to show that Lano had fostered the children's behavior. Although the court commissioner had read Lano's responsive materials, when she learned that Lano had never served them on Hodgen, she noted that those materials should not be considered in making the decision on the motion for contempt. In questioning by the commissioner, however, Lano argued that the children's feelings regarding Hodgen had been influenced by their own experience and interpretation of Hodgen's behavior. The commissioner ruled that based on Hodgen's materials, there was not a sufficient showing of contempt, and he denied Hodgen's motion. The superior court denied Hodgen's subsequent motion for revision without comment.
A review of the record supports the commissioner's decision, which was implicitly adopted by the trial court on revision. In re Dependency of B.S.S., 56 Wn. App. 169, 170-71, 782 P.2d 1100 (1989) (superior court on revision may adopt a commissioner's orders and judgment by clear implication from the record, and a refusal to revise leaves a commissioner's action unchanged). The colloquy between the commissioner and Lano and the documents Hodgen submitted show that the sons, independently of their mother, have severe problems with their father. The letter from Jason, the youngest and only minor child, shows an extreme level of hostility. The attitude of the sons, which the record shows to be independent of the mother, supports the trial court's decision not to disturb the commissioner's ruling on the motion for contempt. In addition, the parties' children are now 16, 18, and 24 years of age. Thus, two of the three are no longer governed by the parenting plan, as residential provisions of a parenting plan apply only to minor children.
RCW 26.09.184(5) provides, "The plan shall include a residential schedule which designates in which parent's home each minor child shall reside. . . ." RCW 26.28.010 provides, "[A]ll persons shall be deemed and taken to be of full age for all purposes at the age of eighteen years."
This case is similar to James, where a teenaged child refused on several occasions to speak to her father on the telephone, and the father did not exercise his court ordered visitation on some weekends. The James court noted that the Parenting Act of 1987, chapter 26.09 RCW, focuses on "continued parenting responsibilities" and stated,
[Compliance [with the parenting plan] may be difficult or impractical [when] . . . a recalcitrant teenager may refuse to spend time with one parent. If the parent with whom the child is living chooses not to force the issue and notifies the other parent of that decision, punishment by contempt appears to be an inappropriate remedy.
James, 79 Wn. App. at 445. Given the evidence of his sons' feelings toward him and the number of years that has passed in which Hodgen has not exercised visitation, the reasoning in James applies equally here. We conclude that the record supports the commissioner's decision that a contempt order was not appropriate or supported by the evidence, and the superior court's denial of the motion for revision. Further, because the record does not sufficiently show an intent to harass through litigation, we deny Lano's request for sanctions.
Affirmed.