Opinion
Nos. 60564-0-I; 61162-3-I.
September 29, 2008.
Appeals from a judgment of the Superior Court for King County, No. 98-3-08060-8, James A. Doerty, J., entered Augsut 20, 2007.
UNPUBLISHED OPINION
In the eight years since Richard and Deborah MacGibbon divorced, Richard has been found in contempt numerous times for failing to comply with his obligations under the decree. On at least two occasions, however, the trial court denied requests to find Richard in contempt. The State argues that the trial court abused its discretion when it declined to find Richard in contempt, but substantial evidence supports the trial court's findings that Richard had complied with its orders, and even if the State were correct that Richard did not fully comply with the orders, the court was not required to find Richard in contempt.
We affirm, but we deny Richard's request for attorney fees on appeal.
FACTS
Richard and Deborah MacGibbon divorced in 2000 after approximately 20 years of marriage. Since the decree of dissolution was entered, Richard has filed at least 12 appeals from the decree and related support and maintenance proceedings. Deborah asked the Division of Child Support (DCS) of the Department of Social and Health Services (DSHS) to help her collect unpaid maintenance and support.
For clarity, we use the parties' first names.
A comprehensive recitation of the proceedings in this case is unnecessary to resolve the issue before us. We, therefore, relate only some of the history to provide a context for our decision.
On January 4, 2007, a superior court commissioner ordered Richard to pay $5,000 by January 18, 2007, and to provide a complete financial declaration. On January 18, 2007, the commissioner found Richard in contempt for failing to pay the $5,000. On March 23, 2007, another commissioner ordered Richard to provide a declaration to explain why he had not complied completely with previous orders. On April 5, 2007, a pro tem commissioner imposed CR 11 sanctions against Richard and his attorney.
In June 2007, a superior court judge again found Richard in contempt. In a "Clarified Order Re Contempt," the court found that Richard had not verified his income and expenses and had not exercised due diligence in conserving his assets. Richard's bank records showed deposits that exceeded his declared income. The court ordered Richard to be confined in the King County jail, but confinement was suspended to allow him an opportunity to purge the contempt and avoid confinement. To purge the contempt finding, the court ordered Richard to
. Provide a statement from his attorney to outline Richard's assets and state whether or not each asset was exempt from the bankruptcy proceeding;
. Provide statements from all financial accounts in which he has an interest;
. Declare the amount and method of payment for all money he had paid for all attorneys since January 1, 2006;
. Send a written statement to his former employer's attorney declaring that the QDRO is valid and should be honored; and
. Pay his child support and maintenance of $6,411.77 by the 15th of each month (in addition to the amount the State garnished from workers' compensation and disability benefits).
On July 11, 2007, the court found that Richard had complied with the contempt order entered in June 2007. But the court ordered him to provide a declaration explaining why deposits of $89,362.51 were made to his current wife's bank account between November 2006 and May 2007 when she is unemployed. Richard also was ordered to document all the money he and his wife received in the previous year, state where the $1,200 deposited into his account at the end of each month originated and why that payment had not previously been disclosed, and to state whether he receives any other money by any other means, "whether taxable or nontaxable, unemployment compensation, workmen's [sic] compensation, disability or any other form of payment." The court ordered Richard to appear personally at the next hearing or provide a statement from his doctor specifying his medical condition, treatment, and prognosis.
On August 20, 2007, the State argued that Richard failed to comply with the court's prior order and should be found in contempt. The court found instead that Richard had met his burden to show that he fully complied with the previous contempt order. The court, however, ordered Richard to provide an updated financial declaration and credit card statements for the previous year. The State appealed the court's denial of its request to find Richard in contempt.
Richard again failed to pay his full child support and maintenance obligations in October and November. On November 13, 2007, the court ordered him to pay his current support obligation of $8,303.76 ($5,759.89 in addition to the $2,543.87 being garnished by the State) by November 15, 2007. The State had received less than it had anticipated through garnishment of Richard's workers' compensation benefits in October, but the court reserved the resolution of the discrepancy for the next hearing.
At the hearing on December 13, 2007, the State argued that Richard had not complied with the November 13 order because he paid less than $8,303.76. Richard had paid $5,759.89, but the amount the State received through garnishment was only $1,251.63. Richard explained that he was no longer receiving workers' compensation benefits and, therefore, the amount that the State received through garnishment decreased. According to the State, however, Richard knew that his workers' compensation benefits stopped in October and, therefore, he had violated the previous order by failing to make up the difference. The court found that Richard had fully complied with the previous order. The State appealed, and the appeal was consolidated with the State's appeal of the other order declining to find Richard in contempt.
ANALYSIS
The State argues that the superior court abused its discretion when it denied the State's requests to find Richard in contempt.
RCW 7.21.010 defines contempt of court as follows:
(1) "Contempt of court" means intentional:
(a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings;
(b) Disobedience of any lawful judgment, decree, order, or process of the court;
(c) Refusal as a witness to appear, be sworn, or, without lawful authority, to answer a question; or
(d) Refusal, without lawful authority, to produce a record, document, or other object.
Contempt proceedings may be initiated as part of a dissolution action when the party obligated to pay child support or maintenance fails to comply. RCW 26.18.050(1). Judges also have general contempt powers under RCW 7.21.020.
Sanctions for contempt may be either punitive or remedial. They are punitive if they are "imposed to punish a past contempt of court for the purpose of upholding the authority of the court." RCW 7.21.010(2). Sanctions are remedial if they are "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." RCW 7.21.010(3).
In contempt proceedings initiated under RCW 26.18.050, certain procedures must be followed. If a petition or motion for contempt is filed, and the court finds there is reasonable cause to believe that the obligor has failed to comply with a support or maintenance order, the court may issue an order requiring the obligor to appear and show cause why the relief requested should not be granted. RCW 26.18.050(1). At the hearing on a show cause motion, if the obligor contends that he (or she) lacked the means to comply, he has the burden to show that he "exercised due diligence in seeking employment, in conserving assets, or otherwise in rendering himself or herself able to comply with the court's order." RCW 26.18.050(4). "[T]he court retains continuing jurisdiction . . . and may use a contempt action to enforce a support or maintenance order until the obligor satisfies all duties of support, including arrearages, that accrued pursuant to the support or maintenance order." RCW 26.18.050(5).
Whether contempt is warranted is a matter within the trial court's discretion. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). We will not disturb the trial court's order unless the court abused that discretion. In re Personal Restraint of King, 110 Wn.2d 793, 798, 756 P.2d 1303 (1988). Discretion is abused if its exercise was manifestly unreasonable or was based on untenable grounds. Moreman, 125 Wn.2d at 40.
Richard had the burden to show that he was unable to comply with the trial court's orders. See Moreman, 125 Wn.2d at 40 (inability to comply with a court's order is an affirmative defense). The State contends that, because Richard "obviously" failed to satisfy his burden, it was manifestly unreasonable for the court not to find him in contempt. But the trial court found that Richard fully complied with the trial court's orders. We review a trial court's factual findings to determine if they were supported by substantial evidence. In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003).
The State failed to assign error to the trial court's findings that Richard fully complied with the orders. Richard argues, therefore, that the findings are verities on appeal, citing RAP 10.3(g) ("separate assignment of error for each finding of fact a party contends was improperly made must be included"). But the trial court did not enter specific, numbered findings, and the State's challenge to the trial court's findings was clearly disclosed in its arguments. We, therefore, do not treat them as verities on appeal. See In re Estate of Lint, 135 Wn.2d 518, 532-33, 957 P.2d 755 (1998).
The July 11 order mainly required Richard to provide documents to show why he had been unable to comply with his obligation to pay the full amount of child support and maintenance each month. Richard provided the requested documents. The November 13 order required Richard to pay the full amount of $8,303.76 for child support and maintenance by November 15, 2007. Because the State previously had been able to collect $2,543.87 from funds it could garnish, the order indicated that Richard's obligation would be $5,759.89. Richard paid $5,759.89, but the State was able to garnish only $1,251.63 because Richard had stopped receiving workers' compensation benefits. Richard provided evidence, however, to show that he had paid the difference, although admittedly not by November 15.
One could argue that Richard did not "fully" comply with the trial court's orders, as the trial court found. But to constitute contempt, the failure to follow a court's order must be intentional. RCW 7.21.010(1). Moreover, even if Richard did not fully comply with the trial court's orders, "a court is not required to impose a contempt sanction every time a violation of a court order is proved." Cobell v. Norton, 231 F. Supp. 2d 315, 320 (D.C. Cir. 2002) (citing Southern Railway Co. v. Brotherhood of Locomotive Firemen and Enginemen, 337 F.2d 127, 136 (D.C. Cir. 1964)).
Furthermore, the purpose of the State's request was to coerce Richard into paying his support obligation. Even if Richard did not fully comply with the court's orders, the court reasonably may have concluded that finding Richard in contempt was not the best way to coerce Richard into meeting his obligations. Under these circumstances, the trial court's refusal to find Richard in contempt was not manifestly unreasonable.
Richard asks this court to order the State to pay his attorney fees on appeal because the State's appeal was frivolous. Considering the history in this case, however, the issue presented by the State was debatable. We, therefore, deny Richard's request for an award of attorney fees.
CONCLUSION
The trial court did not abuse its discretion when it denied the State's requests to find Richard in contempt. The decision of the trial court is affirmed, but we deny Richard's request for attorney fees on appeal For the Court: