Opinion
Nos. 47672-6-I c/w 47772-2-I.
Filed: December 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 98-3-08060-8 Judgment or order under review Date filed: 09/29/2000.
Counsel for Appellant(s), Catherine W. Smith, Edwards Sieh Smith and Goodfriend, 701 5th Ave Ste 7170, Seattle, WA 98104.
Brendan P. Finucane, Edwards Sieh Smith Goodfriend, 701 5th Ave Ste 7170, Suite 7170, Seattle, WA 98104.
Counsel for Respondent(s), Camden M. Hall, Foster Pepper and Shefelman Pllc, 1111 Third Avenue, Suite 3400, Seattle, WA 98101.
Michael B. King, Lane Powell Spears Lubersky, 1420 Fifth Ave., Ste.4100, Seattle, WA 98101.
After the trial court entered a decree dissolving the marriage of Richard MacGibbon and Deborah MacGibbon, Deborah moved to have Richard held in contempt for failing to comply with certain provisions in the decree. The trial court found Richard in contempt, imposed a sanction and a purge condition, and awarded Deborah attorney fees. We affirm the trial court in all respects except the award of prejudgment interest on the attorney fee award, which we reverse. We remand this matter to the trial court solely for the purpose of amending the judgment to strike that portion of it granting prejudgment interest on the award of attorney fees.
FACTS
The facts relating to the proceeding for the dissolution of the MacGibbons' marriage are discussed in our opinion in the appeal with which this case is linked. They will be discussed here only to the extent relevant to the issues presented in this appeal.
In re the Marriage of MacGibbon, No. 46307-7-I.
The trial court entered the decree of dissolution and order of child support on February 28, 2000. On June 30, 2000, Deborah moved the court to find Richard in contempt for failure to comply with the decree and order in four respects: failure to provide proof of life and disability insurance to Deborah by March 15, 2000; failure to assist Deborah in obtaining medical, dental, and extended care insurance; failure to pay the private school tuition of one of the parties' children; and failure to update personal information.
On July 19, 2000, a superior court commissioner entered an order finding that Richard violated the decree of dissolution by failing to assist Deborah in obtaining medical and dental insurance through COBRA.
The court also ordered Richard to pay Deborah $1,225 in attorney fees and the $195 process server fee. Deborah moved for reconsideration of the July 19 order. In an order on reconsideration of the contempt order, entered September 29, 2000, the commissioner found that since entry of the July 19 order, Richard's employer provided Deborah with the opportunity to enroll in or accept COBRA coverage. The court ordered Richard to reimburse Deborah for any medical, dental, or health expenses she directly paid in an amount equivalent to what COBRA would have covered for the period she was without coverage. Deborah moved for revision of the court's order on reconsideration. On October 20, 2000, Judge Barnett entered an order finding Richard in contempt for failing to obtain and give proof of adequate insurance to secure his maintenance and child support obligations. The court awarded Deborah $6,275 in attorney fees for having to bring her initial motion for contempt, $815 in service fees, and $1,400 in delinquent medical insurance premiums. The order provided that Richard could purge himself of the contempt by paying all outstanding judgments by November 1.
DISCUSSION Standard of Review
Whether contempt is warranted is a matter within the trial court's discretion, and, unless that discretion is abused, we will not disturb the trial court's order. We likewise review fines and sanctions imposed in a civil contempt case for abuse of discretion. Whether a purge condition exceeded the court's authority, however, is a question of law which we review de novo.
Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
In re Detention of J.S., 124 Wn.2d 689, 699, 880 P.2d 976 (1994).
In re Interest of M.B., 101 Wn. App. 425, 454, 3 P.3d 780 (2000), review denied, 142 Wn.2d 1027 (2001).
Findings of Fact
Richard argues, as he does in the other appeal, that the trial court erroneously adopted the entire testimony of Deborah and her counsel as its finding of fact rather than make independent findings. This time, he raises the issue in connection with the court's October 20 order. Richard characterizes the court's order as consisting solely of a finding in which the court adopts the testimony of Deborah and her counsel. As in the other appeal, Richard neglects to mention that the court made other, independent, findings as well. Also, his reliance on Peoples Nat'l Bank v. Birney's Enterprises, Inc. is once again misplaced. That case is distinguishable because it involved the appellate court's disapproval of the incorporation of the trial court's oral findings by reference in the place of formal findings. This is not the situation here. We find no impropriety in the trial court's findings of fact.
54 Wn. App. 668, 775 P.2d 466 (1989).
The parties dispute whether Richard preserved this issue for review. We reject his argument on the merits and therefore do not resolve the dispute about whether the issue was properly preserved.
Contempt Finding
Richard argues that the trial court's order fails to make it clear whether the court found him in contempt for failing to provide proof of insurance or for failure to obtain adequate insurance, or for both. Either way, he contends, the court erred.
He argues that if the court found the former, then the sanction was for an act of past contempt and was therefore punitive, and because criminal contempt procedures were not followed, the sanction amounted to a denial of due process. If the court found him in contempt for the latter reason, he argues, the finding is not supported by the evidence and was therefore error.
The court's October 20 order states: 'Richard MacGibbon is found to be in contempt of this court for his failure to obtain and give proof of adequate insurance to secure his maintenance and child support obligations'. Although this provision can be interpreted as a finding that Richard failed to obtain proof of insurance and failed to give that proof, or that he failed to obtain insurance and failed to give proof of that insurance, a review of the record shows that the court found Richard in contempt for failing to obtain and give proof of adequate insurance. Specifically, Deborah did not seek a finding of contempt on the ground that Richard failed to obtain adequate insurance. In her motion, she alleged that Richard should be held in contempt for '[f]ailure to comply with the Decree of Dissolution order which directed that proof of life and disability insurance be provided by Mr. MacGibbon to Ms. MacGibbon by March 15, 2000'. She also alleged that Richard violated the decree by failing 'to provide proof that his child support obligation and his maintenance obligation are secured by life and disability insurance, obtained by him with me named as the beneficiary.' Every order of the court that addresses this issue refers only to Richard's failure to provide proof of insurance, not to his provision of insurance. The trial court's order is properly interpreted as finding Richard in contempt for failing to provide evidence that he has obtained adequate insurance to secure his child support and maintenance obligations.
CP 425.
CP 2.
CP 2.
For example, the court found: 'Specifically, Mr. MacGibbon has failed to provide timely evidence that he has obtained adequate insurance to secure his child support and maintenance payments'. CP 425.
Richard argues that the contempt sanction for failure to provide proof of insurance was a sanction for an act of past contempt, not a continuing contempt. Accordingly, he argues, the sanction must be punitive and, because criminal contempt procedures were not followed, the sanction was error. He bases his argument on the fact that the dissolution decree required him to provide proof of insurance within 15 days of the entry of the decree, or by March 15, 2000. We disagree.
The act on which the contempt finding was based, failure to provide proof insurance by March 15, necessarily is a past act because Richard could not be held in contempt for failure to comply with the decree until after the time for compliance has passed, that is, until after March 15.
The act of providing proof of insurance was an act within Richard's power to perform at the time the court entered the contempt order. A sanction imposed when a person has failed or refused to perform an act that is within his or her power to perform is a remedial, civil sanction. The presence of a purge condition in the October 20 order also shows that the sanction was remedial. Because the contempt was civil, the due process considerations that apply to criminal contempt proceedings are not applicable here. Richard does not dispute the fact that he did not provide proof of insurance. Accordingly, we will not disturb the court's finding Richard in contempt.
A court may impose a remedial sanction '[i]f the court finds that the person has failed or refused to perform an act that is yet within the person's power to perform.' RCW 7.21.030(2). See also RCW 7.21.010(3), defining a 'remedial sanction' as 'a sanction imposed for the purpose of coercing performance when the contempt consists of the omission or refusal to perform an act that is yet in the person's power to perform.'
See State v. Buckley, 83 Wn. App. 707, 711, 924 P.2d 40 (1996) ('A sanction is punitive, and thus criminal rather than civil, if it is imposed to punish a past contempt of court, results in a determinate sentence, and does not afford the defendant an opportunity to purge the contempt by performing the acts required in the original order. A sanction is remedial, and thus civil rather than criminal, if imposed to coerce an act 'yet in the person's power to perform,' and the person can purge the contempt simply by performing the act required.') (footnotes omitted).
In fact, Richard states that he 'does not contest that he failed to provide timely proof'. Reply Br. at 12.
Damages
Richard challenges the trial court's award to Deborah of $6,275 in attorney fees for having to bring her initial motion for contempt and $1,400 for delinquent health insurance premiums.
Richard assigns error to the total judgment in favor of Deborah, which includes an award of $815 in service fees. Although Deborah puts forth an argument in support of the award of $815 in service fees, Richard does not provide argument as to why this portion of the damage award is improper. We therefore will not disturb the award of service fees. See Green v. McAllister, 103 Wn. App. 452, 469, 14 P.3d 795 (2001) (the court will not review an issue to which a party gives passing treatment or about which a party fails to provide reasoned argument).
In addition to imposing a remedial sanction, a court in a civil contempt action may 'order a person found in contempt of court to pay a party for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney's fees.'
With respect to the attorney fee award, Richard argues that the award was improper because many of the grounds on which Deborah brought her initial motion for contempt were not grounds on which the trial court found Richard in contempt. He relies on two cases, in both of which the plaintiff brought several distinct causes of action against the defendant, but was successful on less than all of them. Here, by contrast, all the fees Deborah incurred stemmed from one action brought under one theory: contempt. Richard's failure to comply with the decree necessitated the contempt proceeding. The fact that he complied with some of the grounds upon which Deborah's motion was initially brought does not negate the fact that she was forced to bring the motion for contempt in the first place in order to force him into complying with the decree. Awarding Deborah all the attorney fees she has incurred since the inception of the contempt proceedings, because all were related to Richard's failure to comply with the decree, was not an abuse of discretion.
Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 865 P.2d 507 (1993) and Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 733 P.2d 208 (1987).
For instance, in Nordstrom, the plaintiff was successful only on a Consumer Protection Act (CPA) claim and not on other claims, including one for breach of a lease. The court limited recovery of attorney fees to those related to the CPA claim.
Next, Richard complains about the court's award of $1,400 for delinquent medical insurance premiums because, he argues, Deborah did not incur these costs 'as a result of the contempt' as that term is used in RCW 7.21.030(3). He relies on the fact that the COBRA issue was eventually resolved when his employer offered Deborah insurance coverage. But, the fact remains that Richard failed to assist her in obtaining coverage as required by the decree and, as a result, she incurred the cost of the premiums. The award was not an abuse of discretion.
Prejudgment Interest
The trial court ordered interest on its award of damages to Deborah from July 11, 2000, the date of Richard's response to Deborah's motion for contempt. Richard argues that this is an improper award of prejudgment interest on an unliquidated claim.
Prejudgment interest is available when an amount claimed is liquidated. A claim is 'liquidated' if "the evidence furnishes data, which, if believed, makes it possible to compute the amount [owed] with exactness, without reliance on opinion or discretion." Prejudgment interest is not proper on an award of attorney fees. Thus, the court's award of prejudgment interest on the award of $6,275 in attorney fees was error. The judgment must be corrected to strike the prejudgment interest on the award of attorney fees. But, interest on the $1,400 in unpaid premiums and $815 in service fees was not improper because both of these claims were liquidated.
Litho Color, Inc. v. Pacific Employers Ins. Co., 98 Wn. App. 286, 300, 991 P.2d 638 (1999). Prejudgment interest is also available when the amount of an unliquidated claim "is for an amount due upon a specific contract for the payment of money and the amount due is determinable by computation with reference to a fixed standard contained in the contract, without reliance on opinion or discretion." Id. (quoting Kiewit-Grace v. State, 77 Wn. App. 867, 872, 895 P.2d 6 (1995)). This ground for awarding prejudgment interest is not available here because Deborah is not seeking recovery under a contract for the payment of money.
Id., 98 Wn. App. at 301 (quoting Prier v. Refrigeration Eng'g Co., 74 Wn.2d 25, 32, 442 P.2d 621 (1968)).
Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 688, 15 P.3d 115 (2000).
Purging the Contempt
The trial court's October 20 order provides: 'Mr. MacGibbon may purge himself of this contempt by paying all outstanding judgments by November 1, 2000 and by complying with all of the Court's outstanding Orders.'
CP 426. The order does not identify what judgments were outstanding on October 20.
Richard's argument challenging the validity of the purge provision indicates that the judgment awarding Deborah $177,000 in attorney fees (which Richard challenges in the other appeal) was outstanding. He argues that this condition is not effective to purge Richard of the contempt of failing to provide proof of insurance and is therefore an unauthorized punitive sanction.
Deborah asserts that Richard paid the $177,000 judgment in full in August 2000 and was fully aware of that fact when the court entered its October 20 order and when he filed this appeal. In the reply brief, Richard's counsel admits that this judgment had been paid in full at the time the court entered the October 20 order. Still, Richard argues, the purge condition, even if viewed as a remedial sanction, is improper and must be reversed.
In In re Interest of M.B., this court considered, albeit in a different context, whether a purge condition can be characterized as remedial even if it requires the contemnor to purge the contempt by performing an act that was not required by the original contempt order. The court found no case in Washington that addressed this issue and adopted the following rule set forth by the Wisconsin Supreme Court: "If a circuit court grants a purge condition, the purge condition should serve remedial aims, the contemnor should be able to fulfill the proposed purge, and the condition should be reasonably related to the cause or nature of the contempt."
M.B. involved contempt actions to enforce disposition orders entered against juveniles who were adjudicated to be at-risk youths, children in need of services, or truants.
Id., 101 Wn. App. at 449-50 (quoting In re Marriage of Larsen, 165 Wis.2d 679, 478 N.W.2d 18, 20-21 (1982)) (emphasis by the court in M.B.).
Accordingly, the court in M.B. rejected the argument that, in order to be valid, a purge condition can be nothing other than the condition that the contemnor comply with the original court order.
We apply the foregoing rule and uphold the purge condition. Ordering Richard to pay outstanding judgments serves remedial, not punitive, purposes. Richard should be able to fulfill the requirement of paying the outstanding judgments, and requiring him to do so is reasonably related to the nature of his contempt.
We disagree with Richard's contention that even if the purge condition is viewed as a remedial sanction, it is invalid because it is not authorized by RCW 7.21.030. That section permits as a remedial sanction '[a]n order designed to ensure compliance with a prior order of the court.' RCW 7.21.030(2)(c). Here, the purge condition is designed to ensure compliance with the prior judgments.
Attorney Fees on Appeal
Deborah requests an award of attorney fees merely by stating: 'Deborah requests that this Court direct the parties to address both intransigence, litigiousness and need as a basis for a fee award to Deborah as part of the RAP 18.1(c) submission process.' Despite Deborah's failure to provide argument and citation to authority in support of her request, we have reviewed the record, including the parties' financial affidavits, and we deny Deborah's request for fees under both theories.
Br. of Respondent at 24.
A mere request for attorney fees without argument and citation to authority identifying the grounds upon which fees may be awarded is insufficient. Wilson Court v. Tony Maroni's, Inc., 134 Wn.2d 692, 711, n. 4, 952 P.2d 590 (1998).
CONCLUSION
We affirm the trial court's orders in all respects except for the portion granting prejudgment interest on the attorney fee award. We remand the matter solely to amend the judgment to strike that portion of it granting prejudgment interest on the attorney fee award and for no other purpose. We deny Deborah's request for fees on appeal.
In light of both parties' actions in this protracted, highly contentious dissolution proceeding, we emphasize that, on remand, nothing more is to be done, and no other or further relief is to be requested, but the amendment of the judgment solely in the manner discussed herein.
WE CONCUR: AGID, J., BECKER, J.