Michael Erickson v. Meela Pribic ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of Parenting and ) No. 79689-5-I
Support of M.E. and A.E., )
MEELA PRIBIC,
Respondent, )
v. )
) UNPUBLISHED OPINION
MICHAEL ERICKSON, )
) FILED: March 2, 2020
Appellant. )
VERELLEN, J. — Michael Erickson challenges the trial court’s denial of his
motion for contempt against Meela Pribic. Erickson argued Pribic violated the
parenting plan. The purpose of the provision at issue was to incentivize Pribic to
ensure the children’s attendance at sporting events. Pribic presented evidence
that the boys were absent only due to illness or a conflict with other parenting plan
provisions. She also presented evidence that she made efforts to otherwise
ensure the boys’ attendance. Because the provision at issue is silent as to what
happens in the event of illness and conflicts with other parenting plan provisions
that do not support any relief, we conclude these facts do not constitute a plain
violation of the parenting plan. The trial court did not abuse its discretion when it
denied Erickson’s motion.
No. 79689-5-1/2
Therefore, we affirm.
FACTS
Erickson and Pribic are the parents of two boys, a ten-year-old and an
eight-year-old. Erickson and Pribic never married. In 2016, Pribic filed a petition
to establish a parenting plan. In March of 2018, before trial, the parents engaged
in mediation and entered an agreed parenting plan. In January of 2019, Erikson
brought a motion for contempt against Pribic. The court denied the motion,
determined Erickson brought the motion in bad faith, and awarded Pribic
attorney’s fees. Erickson moved for reconsideration. The court denied his motion.
Erickson appeals.
ANALYSIS
I. Contempt
Erickson contends the trial court abused its discretion when denied his
contempt motion.
We review a trial court’s decision on contempt for abuse of discretion.1
“‘Failure to comply with a provision in a parenting plan or a child support order may
result in a finding of contempt of court, under RCW 26.09.160.”2
RCW 26.09.160(2)(a) provides,
A motion may be filed to initiate a contempt action to coerce a parent
to comply with an order establishing residential provisions for a child.
If the court finds there is reasonable cause to believe the parent has
1 In re Marriage of James, 79 Wash. App. 436, 439-40, 903 P.2d 470 (1995).
2 kI. at 443 (quoting RCW 26.09.184(6)).
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not complied with the order, the court may issue an order to show
cause why the relief requested should not be granted.
“If a trial court finds after a hearing that a parent has ‘not complied with the
order establishing residential provisions’ of a parenting plan in ‘bad faith,’ the court
‘shall find’ the parent in contempt of court.”3 When determining whether the facts
support the trial court’s contempt decision, we must “strictly construe the order
alleged to have been violated, and the facts must constitute a plain violation of the
order.”4
Here, Erickson alleged Pribic violated section (5)(a)(iii) of the parenting
plan. Section (5)(a)(iii) of the parenting plan provides, ‘It is expected that the
children do not miss sports/activities when they are with the mother, if the children
have to miss an event then the mother shall reimburse the father $50.00 for each
event (game/practice/recital/etc.) that are missed.”5 In his declaration, Erickson
argued:
When negotiating the final parenting plan, it was a high priority for
the kids to play their sports and it was a high priority for them and me
to make sure they did not miss these events. The solution we
agreed to was that Meela would pay $50 each time they missed an
event when they are with her. In return, I agreed to cover 100% of
sports fees and medical fees, along with other concessions in the
parenting plan. In 2018, the boys missed 13 games and practices
when with Meela. I have asked her to reimburse me $650 but she
~ In re Marriage of Rideout, 150 Wn.2d 337,349,77 P.3d 1174 (2003)
(quoting RCW 26.09.160(2)(b)).
~ In re Marriage of Humphreys, 79 Wash. App. 596, 599, 903 P.2d 1012
(1995).
~ Clerk’s Papers (CP) at 8.
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has refused. She claims the responsibility to reimburse me for
missed events is not even in the parenting plan.{6J
In her response, Pribic explained the reasons the boys missed each of the
thirteen events. Twelve out of thirteen of the absences were due to illness.7 One
of the absences occurred on Mother’s Day.8 Erickson does not challenge these
factual assertions. Rather, Erickson argues section 5 requires Pribic to pay
regardless of the reason for the boys’ absences.
The trial court held a hearing on Erickson’s motion on February 7, 2019.
Erickson’s attorney indicated the purpose of section 5 was to ‘ensure that the
children participate in these events” and “not be withheld if the mother just doesn’t
want to take them.”9 The court inquired whether Erickson had evidence that the
mother was withholding the children for no reason. Erickson’s attorney
elaborated: “We’re here on a principle to make sure . . .there is some financial
responsibility that the mother needs to be aware of.”1°
Pribic’s attorney argued the motion was unreasonable.11 Pribic’s attorney
contended there was no evidence that Pribic did not take the kids to the events for
6 CP at 3.
~ CP at 31-36.
8 CP at 37 (“In the Parenting Plan, I have Mother’s Day as a special
occasion. . .I believe the provisions that I have Mother’s Day has priority over the
.
provision that would require me to take the children to sports event.”).
~ Report of Proceedings (RP) (Feb. 7, 2019) at 8.
10 Id. at 10.
j~ at 19 (“Bringing a contempt motion when you concede that the child
was sick for every event except for one on Mother’s Day and—for $650 when you
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“whatever reason,” her attorney argued the motion was punitive.12 “And so, under
the circumstances of this case, . . . there is no contempt, there is no bad faith.”13
At the conclusion of the hearing, the court denied the motion. The court
determined section 5 was ambiguous because it “is silent about what happens in
the event that a child is ill.”14
I can’t find that this is unambiguous to the point where I can make a
finding that Ms. Pribic willfully violated the court order in either not
taking the kids or in not paying a monetary penalty for failing to take
the kids when they’re ill. I also can’t make a finding that she willfully
violated the court order in interpreting the parenting plan in such a
way that Mother’s Day had priority over the sporting events that were
scheduled on that day.
[O}ne of the things that’s influencing me is the evidence
that’s before me is that Ms. Pribic has made a lot of efforts to make
sure that the boys get to their practices and get to their games and
their tournaments. . I don’t really have any evidence before me
. .
that Ms. Pribic is not taking all reasonable steps to honor the
parenting plan.[151
The purpose of the rule of strict construction “is to protect persons from
contempt proceedings based on violation of judicial decrees that are unclear or
ambiguous, or that fail to explain precisely what must be done.”16 Under strict
earn $22,000 per month and the other side doesn’t earn anything because they’re
in school, there’s a significant concern with respect to that.”).
‘2~Lat20-21.
13 Id. at 21.
14 Id. at 27.
15 kI. at 28-29.
16 Graves v. Duerden, 51 Wash. App. 642, 647-48, 754 P.2d 1027 (1988).
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construction, section (5)(a)(iii) is ambiguous as to whether Pribic is required to pay
for missed events due to sickness or an apparent conflict with other parenting plan
provisions (for example, Mother’s Day). Erickson asserts the purpose of section 5
“was to ensure that Ms. Pribic had some financial responsibility. . . as well as to
incentivize Ms. Pribic to ensure the children’s attendance at their events.”17 In light
of this purpose, the ambiguity in section 5, and evidence of Pribic’s effort to ensure
the boys’ attendance, the facts do not constitute a plain violation of the parenting
plan.
We conclude the trial court did not abuse its discretion when it denied
Erickson’s contempt motion.
II. Bad Faith
Erickson argues the court abused its discretion when it entered a bad faith
finding and awarded Pribic her reasonable attorney’s fees.
We review a trial court’s award of attorney fees for abuse of discretion.18
When a party moves for contempt under ROW 26.09.160, the court may award
attorney fees to the nonmoving party “if the court finds the motion was brought
without reasonable basis.”19
After the court denied Erickson’s motion for contempt, the court determined
the motion was brought in bad faith and awarded Pribic her reasonable attorney’s
17 Appellant’s Br. at 22.
18 Scott Fetzer Co. v. Weeks, 122 Wash. 2d 141, 147, 859 P.2d 1210 (1993).
19 ROW 26.09.160(7).
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fees. “And this motion, it’s a punitive motion. . . . I am quite convinced it wasn’t
designed for Mr. Erickson to get $650; it was designed to teach Ms. Pribic a
lesson.”2°
We agree it was within the discretion of the trial court to find Erickson
brought the motion in bad faith. Erickson did not have a reasonable basis for
bringing the contempt motion. Notably, Erickson took the position in the trial court
that the purpose of the provision was to ensure participation “not be withheld if the
mother just doesn’t want to take them.”21 This concern is different from Pribic not
taking the boys to practices or games because they are ill. And there is evidence
that Pribic was working diligently to ensure the boys attended sporting events.
The purpose of section 5 was not served by Erickson’s contempt motion, given
that the absences were mainly due to illness and not Pribic’s intentional violation
of the parenting plan.
We conclude the trial court did not abuse its discretion it awarding fees to
P rib ic.
lii. Fees on Appeal
Erickson requests fees on appeal under ROW 26.09.140 and RAP 18.1.
Erickson is not the prevailing party, and he failed to devote an adequate section of
his opening brief to this issue. We deny his request for fees.
20 RP (Feb. 7,2019) at 28.
21 Id. at 8.
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Pribic also requests fees on appeal under RCW 26.09.140 and RAP 18.1.
RCW 26.09.140 provides for attorney fees on appeal. In considering whether to
award fees under RCW 26.09.140, we consider the “arguable merit of the issues
on appeal and the parties’ financial resources.”22 Pribic’s financial declaration
establishes the dramatic disparity in the parties’ financial resources. Erickson has
the ability to pay and Pribic has need. We grant Pribic’s request in an amount to
be determined by a commissioner of this court upon Pribic’s compliance with
RAP 18.1.
Therefore, we affirm.
WE CONCUR:
~‘ ~4’I’
F
22 In re Marriage of Raskob, 183 Wash. App. 503, 520, 334 P.3d 30 (2014).