Thomas O. Baicy v. Danelle M. Shay ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Parenting and Support of:
BAINYA SHAY DIVISION ONE
THOMAS O. BAICY, No. 68925-8-1
Appellant,
UNPUBLISHED OPINION
and
DANELLE M. SHAY,
Respondent. FILED: June 10, 2013
Dwyer, J.—In this dispute arising from a parenting plan, Thomas Baicy
primarily challenges a commissioner's order, confirmed by a superior court judge,
holding him in contempt for violating provisions of the parenting plan. We fino^o c//o
abuse of the court's discretion and affirm.
Thomas Baicy and Danelle Shay are the parents of Bainya, who was borfi «JD :^'
in April 2005. Baicy and Shay represented themselves at trial. In May 2011, the^
trial court entered final orders providing for the care and support of Bainya,
including a parenting plan and an order of child support. In October 2011, Baicy
filed a petition to modify the parenting plan. He sought to alter the transportation
arrangements. The parenting plan provided for the "receiving parent [to] be
responsible for transporting the child." Baicy wanted to alter the parenting plan to
require Shay to meet him to exchange the child at a McDonald's restaurant in
Covington. Baicy claimed that modification was necessary because Shay's
No. 68925-8-1/2
father, who lived with her, had an "anger management issue" and had threatened
him in the past, creating a "potential for hostility."
On November 22, Baicy obtained a default order and a court
commissioner entered a modified parenting plan in accordance with Baicy's
proposal.1 Afew weeks later, Baicy filed a motion for contempt alleging that
Shay had failed to comply with the transportation provisions of the modified
parenting plan.
Shay retained counsel and, on January 9, 2012, filed a motion to vacate
the default order and modified parenting plan. In her supporting declaration,
Shay alleged that Baicy was "angry" about the parenting plan provisions and
refused to see Bainya unless she complied with his demands to switch days or
provide transportation. She alleged that Baicy did not regularly see Bainya
during his scheduled time afterthe school year had ended and did not see her at
all after July 3, 2011. Shay admitted that Baicy served documents on her in
November 2011, but she believed the documents related to his appeal of the
court's May 2011 final orders. She also alleged that she had attempted to
exchange Bainya in accordance with the new parenting plan after discovering
that it had been entered, but that Baicy did not show up. Shay also brought a
motion seeking contempt sanctions based on Baicy's noncompliance with the
parenting plan.
1Following entry of the default order, Baicy also obtained an order of child support
adjusting his monthly obligation from $403 to $69.
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No. 68925-8-1/3
On January 30, 2012, a court commissioner granted Shay's motion to
vacate. The commissioner determined that there were several procedural
problems with the default order, including the fact that Baicy had appealed the
May 2011 final orders and that the appeal was still pending both when he filed
his motion to modify and when the court entered the order of default.2 The
commissioner's order informed Baicy that a petition to modify must be based on
a substantial change in circumstances in accordance with RCW 26.09.260, and
encouraged him to consult legal counsel before proceeding with such a petition.
Baicy renoted a hearing on his petition to modify the parenting plan. At a
February 23 hearing before another court commissioner, Baicy acknowledged
that his hostile relationship with Shay's father existed at the time of the April 2011
trial and had not changed. He admitted that his petition, therefore, was not
based on a substantial change of circumstances.
Consistent with her declaration, Shay informed the court that Baicy had no
contact with the child between July 3 and November 2011. She also averred that
between November 2011 and January 2012, Baicy had not consistently complied
with the provisions he proposed and which had been incorporated into the
parenting plan in effect between November 2011 and January 2012. For his
part, Baicy argued that it was Shay who was not in compliance with the
transportation provisions. He admitted, however, that since the modified
parenting plan was vacated a month earlier and the May 2011 order was
2Baicy filed a motion to voluntarily dismiss the appeal on November 18, 2011, and this
court issued its ruling terminating review on December 1, 2011.
No. 68925-8-1/4
reinstated, he had not picked Bainya up from Shay's house as provided for by
the order.
The commissioner entered an order denying the petition to modify based
on a finding that there was no substantial change in circumstances, as needed to
support a modification of the parenting plan. The commissioner found that the
petition was brought in bad faith. In a separate order, the commissioner
concluded that Baicy violated the parenting plan byfailing to pick up his daughter
in order to exercise his residential time between February 1, 2012 and February
22, 2012. The commissioner found that Baicy was "not confused" but "defiant"
about the transportation provisions. Based on the finding of contempt and bad
faith in initiating the petition, the commissioner ordered Baicy to pay $4,500 in
attorney fees to Shay.
Baicy filed a motion to revise the commissioner's February 23order. He
claimed that there was no violation of a court order because Shay had agreed to
change the transportation arrangements. He also argued that contempt
sanctions were unwarranted, especially given a lack of previous warnings or
admonishments.
Following a hearing before Judge Deborah Fleck, who had presided over
the trial, the court rejected Baicy's motion and affirmed the commissioner's
rulings. In its March 30 order on revision, the trial court found no substantial
change in circumstances to support Baicy's petition to modify. The court further
found that Baicy did not exercise his residential time between July and November
2011 and did not exercise all of his residential time between November 2011 and
No. 68925-8-1/5
the February 2012 hearing before the commissioner. The court confirmed the
award of attorney fees as a remedial sanction under RCW 7.21.030(3).
Baicy filed a motion for reconsideration of the fee award based on new
evidence. Baicy submitted evidence to show that Shay's vehicle was parked at
the condominium complex of her former attorney at various dates and times.3
Baicy argued that this evidence proved that Shay did not actually owe the
attorney fees awarded because she was "getting free legal services." Baicy also
claimed the evidence demonstrated that Shay had relocated without providing
notice to him.
On May 16, 2012, Judge Fleck affirmed the court's previous finding of
contempt, found that Shay had incurred attorney fees in connection with the
contempt, and denied the motion to reconsider. The court determined that
Baicy's allegation of an intimate relationship between Shay and her former
counsel was not relevant to whether Baicy violated a court order by not
exercising his visitation for a period of time or to whether he had initiated a
baseless petition and thereby violated CR 11. The court also made a finding that
the extensive and meritless litigation initiated by Baicy following entry of the final
orders justified a restriction on his ability to file new motions and petitions:
On the basis of credibility determinations and findings made as a
result of the trial, the statements made in the father's pleadings filed
since entry of the orders following trial, the revision hearing, my
familiarity with these parties, and the extent of litigation initiated by
the father since the entry of the orders following trial, I find that the
father continues to be angry and defiant, necessitating an order
3Shay was represented by the attorney until February 2012 butthereafter she was and
continues to be represented by a different attorney at the same law firm.
No. 68925-8-1/6
limiting his ability to file additional motions or petitions unless he
obtains advance authorization from this court or a subsequent Chief
Unified Family Court Judge, or if this court is unavailable, then from
another Chief Judge or a UFC Judge.
Approximately three months later, on August 1, Shay filed a notice of
intent to relocate within King County. Baicy did not object within the statutory 30-
day objection period,4 and on September 6, 2012, the court entered ex parte
orders permitting the relocation and modifying the parenting plan.5
Baicy filed a motion to vacate the ex parte orders on October 25 and
obtained an ex parte order to show cause. On November 7, 2012, the court
entered an order quashing the show cause order, imposed sanctions of $1,500
for the failure to obtain authorization in compliance with the May 16, 2012 order,
and further ordered that Baicy may not obtain further authorization until the
$1,500 amount is paid in full. Baicy appeals.
II
Our consideration of Baicy's appeal is controlled by well-settled principles
of appellate review. Our review is limited to orders properly before us based on a
timely notice of appeal. RAP 5.2(a). We consider only evidence that was before
the trial court at the time a decision was made. See RAP 9.1, 9.11. Wedonot
weigh conflicting evidence or substitute our judgmentfor that of the trial court, in
re Marriage of Rich. 80 Wn. App. 252, 259, 907 P.2d 1234 (1996). The trial court
4See RCW 26.09.480(1) (requiring party to object within 30 days of receipt of notice of
intended relocation).
5The modified parenting plan maintains the same weekend visitation schedule as the
May 2011 order but eliminates Baicy's midweek visit. The transportation provisions provide for
Baicy to transport to and from the child's school when it is in session and otherwisefor Baicy to
provide for transportation from Shay's home unless the parties otherwise agree in writing.
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No. 68925-8-1/7
is the judge of the credibility of witnesses, and we review challenged findings of
fact only for substantial evidence in the record before the trial court. See Dodd v.
Polack, 63 Wn.2d 828, 829, 389 P.2d 289 (1964). Unchallenged findings are
verities on appeal. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102(1999).
An appellant must provide "argument in support of the issues presented
for review, together with citations to legal authority and references to relevant
parts of the record." RAP 10.3(a)(6). This court generally will not consider claims
unsupported by citation to authority, references to the record, or meaningful
analysis. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d
801, 809, 828 P.2d 549 (1992). While we recognize that Baicy was pro se at the
time he prepared his opening brief, pro se litigants are held to the same
standards as attorneys and must comply with all procedural rules on appeal, in
re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).6
Baicy's briefing is deficient in several respects. He raises several
arguments with regard to the commissioner's January 30, 2012 order granting
Shay's motion to vacate—an order he did not timely appeal. Baicy lists six
assignments of error but fails to address the assignments in a coherent manner
in the argument section of his brief. The argument section of his brief presents a
litany of complaints in a stream-of-consciousness manner and includes
numerous arguments unrelated to the designated assignments of error. He does
6Baicy initially represented himself in this appeal but it appears he is currently
represented by counsel.
No. 68925-8-1/8
not assign error to any factual findings, although the essence of his appeal is
largely an attempt to retry factual matters in this court.
In short, the deficiencies in Baicy's briefing are sufficient to preclude
review. Nevertheless, to the extent possible, we have addressed his challenges
to the following orders: the commissioner's February 23, 2012 order holding
Baicy in contempt and denying his petition to modify; Judge Fleck's March 30,
2012 order on revision, May 16, 2012 order denying reconsideration, and
November 7, 2012 order quashing Baicy's show cause order; and the
commissioner's September 6, 2012 ex parte orders permitting relocation and
entering a parenting plan.7
Ill
Disobedience of a court order is a ground for a court to order a sanction
for contempt of court. RCW 7.21.010, 020. The standard of review is abuse of
discretion. Moreman v. Butcher. 126 Wn.2d 36, 40, 891 P.2d 725 (1995). A
court abuses its discretion when its decision is based on untenable grounds or is
made for untenable reasons. Moreman, 126 Wn.2d at 40.
Baicy challenges the commissioner's February 23 order denying his
petition and holding him in contempt. Baicy claims the proceedings were
inherently unfair because Shay was represented by counsel and he was not. But
he was not entitled to counsel at public expense in order to pursue his
7We also address several motions filed in conjunction with this appeal. Baicy filed a
motion to stay the prefiling authorization provision of the May 16, 2012 order and a motion to
strike and request for sanctions in response to Shay's designation of additional verbatim reports
from two trial court hearings. Shay requests fees for having to respond to a frivolous motion to
strike. We hereby deny both motions and both parties' requests for sanctions.
8
No. 68925-8-1/9
modification petition. See In re Marriage of King, 162 Wn.2d 378, 397-98, 174
P.3d 659 (2007). Baicy points out that the contempt adjudication could have
resulted in incarceration, and argues that he was therefore entitled to be advised
ofthe right to appointed counsel.8 See Tetro v. Tetro, 86 Wn.2d 252, 255, 544
P.2d 17 (1975). But Baicy does not allege indigency, nor does the record
establish indigence. Baicy did not ask for an attorney or request a continuance.
Nor does the record support Baicy's allegation that the commissioner was biased
against him and "acted as co-counsel" for Shay by asking him to respond to
Shay's allegations at the hearing. Baicy's challenge to the February 23 order
fails.
IV
With respect to the trial court's March 30 order denying revision of the
commissioner's ruling, Baicy claims that there was no evidence before the court
that he failed to exercise residential time with Bainya. He also argues that the
failure to successfully exchange the child at McDonald's was merely a matter of
"confusion" and the court erred in finding otherwise.
But there was evidence before the court in the form of sworn declarations.
The trial court's finding that Baicy failed to exercise visitation as ordered in the
parenting plan for several months in 2011 is supported by Shay's declarations.
Shay also alleged that Baicy only met her once in January 2012 at McDonald's.
Baicy never disputed the claim that he did not exercise visitation for a period of
8 Baicy's position on this point is notentirely clear because he claims it is "barely
arguable" that he was entitled to appointed counsel.
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No. 68925-8-1/10
months in 2011. He challenged only the allegation that he did not comply with
the modified parenting plan entered upon the default order. But the record on
appeal includes only one receipt submitted by Baicy, from the restaurant drive-
through window, to show that he had been there on a single appointed visitation
date. Shay submitted receipts showing that she was inside the restaurant on
several appointed visitation dates. The evidence before the court supported its
finding that Baicy did not exercise his residential time between July and
November 2011 and did not exercise all of his time between November 2011 and
the February 23, 2012 hearing.
Baicy appears to suggest that the court was unable to assess credibility
because the witnesses did not testify at an evidentiary hearing on the contempt
motion. But to the extent that the documentary evidence was conflicting, itwas
well within the court's purview to weigh and resolve the conflicts presented in the
documentary evidence. See In re Marriage of Rideout, 150Wn.2d 337, 351, 77
P.3d 1174 (2003) (appellate court defers to trial court's findings in contempt
proceedings even where the evidence is entirely documentary). Baicy cites no
authority that supports his position that the procedure here was improper.
V
In challenging the trial court's May 16 order denying his motion for
reconsideration, Baicy argues that the court should have remanded the matter to
the commissioner based upon the new evidence he submitted. As he argued
below, Baicy maintains that the evidence showed that (1) Shay was "paying her
legal fees in a manner other than cash" and (2) Shay had relocated Bainya
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No. 68925-8-1/11
without providing notice to him. We do not agree that the evidence actually
established either of these facts. The evidence did not call into question the
evidence in the record establishing that, at the time of the February 23 hearing
before the commissioner, Shay had incurred legal fees of approximately $6,000.
Nor does the record support Baicy's claim that the court denied his motion based
on its misjudgment of Shay's credibility and its desire to protect her former
attorney. The evidence submitted on reconsideration was immaterial to the
court's basis for holding Baicy in contempt—the decision Baicy was asking the
court to reconsider.
Baicy also challenges the provision ofthe May 16 order that requires him
to obtain court authorization before filing new motions or petitions. He claims
that the court's explanation of the basis for the restriction is inadequate, the
restriction lacks standards to govern authorization, and that, at the very least, the
provision should have included an expiration date. He contends the prohibition
violates his right to be treated equally before the courts.
Courts in Washington have the "inherent power to control the conduct of
litigants who impede the orderly conduct of proceedings." Yurtis v. Phipps, 143
Wn. App. 680, 693, 181 P.3d 849 (2008); see also RCW 2.28.010(3). A court,
therefore, has discretion to place reasonable restrictions on any party who
abuses the judicial process. In re Marriage of Giordano, 57 Wn. App. 74, 78, 787
P.2d51 (1990).
The restriction imposed here is not a moratorium and does not deny Baicy
access to the courts. Although Baicy speculates that the court will deny
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No. 68925-8-1/12
authorization of any motion he seeks to file, nothing in the record suggests that is
the case. The record also supports the trial court's finding that Baicy had
engaged in a significant amount of meritless litigation following the entry of the
court's May 2011 final orders. Within five months after the court entered the final
parenting plan, Baicy filed a meritless petition to modify and continued to pursue
modification after being advised by the court in January 2012 that a modification
petition must be supported by a substantial change in circumstances. He also
filed several additional unsupported motions to modify child support and a motion
for contempt.
Baicy also challenges the May 16 order because it affirms the February 23
sanctions under both the contempt statute, RCW 7.21.030(3), and CR 11. Baicy
claims that he lacked notice of a CR 11 violation and, therefore, had no
opportunity to cure the violation by withdrawing his petition. Baicy admits,
however, that Shay's trial court pleadings referred to CR 11. Moreover, Baicy
fails to articulate prejudice. The commissioner imposed the sanctions based on
contempt. The trial court on revision affirmed the sanctions, specifically under
RCW 7.21.030. Because the trial court did not abuse its discretion in imposing
sanctions for contempt, we need not address the ruling on reconsideration that
CR 11 provides an additional basis for the sanctions imposed.
VI
Baicy filed supplemental notices of appeal designating the September 6,
2012 ex parte order permitting relocation and modifying the parenting plan and
the November 7, 2012 order quashing his order to show cause and imposing
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No. 68925-8-1/13
sanctions. Although Baicy now contends that the trial court should not have
allowed Shay's relocation, he did not object within 30 days of receiving notice of
the intended relocation. RCW 26.09.480(1). He therefore waived his right to
challenge the relocation. See RCW 26.09.500 (if a party entitled to object fails to
do so, "then the relocation of the child shall be permitted"). With respect to the
November 7 order, Baicy claims the court was not authorized to sanction him for
filing a motion to vacate an ex parte order. But the court's order clearly identifies
the basis for sanctions: his violation of the court's May 16, 2012 order. He cites
no authority to support his argument that the court lacked authority to impose
sanctions after he violated the court's order. See Geonerco, Inc., v. Grand Ridge
Props. IV, LLC, 159 Wn. App. 536, 544, 248 P.3d 1047 (2011) (noting trial court's
authority to fashion and impose appropriate sanctions under its inherent authority
to control litigation). It is clear from the court's order and the hearing on Shay's
motion to quash that Baicy was provided with notice and the opportunity to
respond.
Affirmed.
')/L^ !
We concur:
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