DocketNumber： No. 72366-4
Citation Numbers： 150 Wash. 2d 337
Judges： Alexander, Bridge, Chambers, Fairhurst, Ireland, Johnson, Madsen, Owens, Sanders
Filed Date： 10/2/2003
Status： Precedential
Modified Date： 11/16/2024
[As amended by order of the Supreme Court October 27, 2003.]
Christopher Rideout initiated a contempt proceeding in superior court against his former wife, Sara Rideout. In it he alleged that Sara demonstrated a pattern of interference with residential time with their children to which Christopher was entitled pursuant to a court-approved parenting plan and a subsequent court order establishing a summer residential schedule. After a hearing, the superior court held Sara in contempt for what it concluded was her “bad faith” failure to comply with the terms of the court order relating to summer residential time. Sara obtained review of that decision by the Court of Appeals, Division Two, which affirmed the superior court’s contempt order. Sara thereafter petitioned for review by this court and we granted her petition. In re Marriage of Rideout, 147 Wn.2d 1008 (2002).
I. Facts
On April 18,1995, Christopher Rideout filed a petition in Thurston County Superior Court seeking dissolution of his marriage to Sara Rideout. During the course of the Rideout’s marriage, a son, Christopher (Kit) (birth date July 23, 1989), and a daughter, Caroline (birth date Aug. 1, 1987), were born to the Rideouts. Establishing the residential schedule for these children was the focal point of the highly contested dissolution proceeding.
On August 25, 1997, the superior court entered a decree dissolving the Rideout’s marriage and approving a permanent parenting plan. The plan provided that Sara was to have the children “the majority of the time,” except that Christopher and Sara would alternate weekends with the children. Clerk’s Papers (CP) at 7. Concerning the summer residence of the children, the parenting plan provided that Kit and Caroline would reside with Sara except for a four-week period when the children were to be with Christopher. Christopher’s summer residential time was to be taken in “one or two blocks of time, at the father’s option.” CP at 5. The parenting plan called for a continuation of the alternating weekend residential schedule during the summer, except when the children were out of the area during a planned vacation. The plan specified that, in the absence of a contrary agreement between Christopher and Sara, each summer block “shall begin at 5 p.m. on Friday and
The parenting plan also provided that Christopher was to have residential time with Caroline on her birthday in “odd” years. CP at 7. Sara and Christopher later agreed to follow a schedule for special occasions, which included holidays, that is “the opposite of the [schedule] in the parenting plan.” CP at 56. Per their agreement, “[Christopher] was to have . . . Caroline, for her thirteenth birthday on August 1, 2000.” CP at 65; see CP at 56. It is an alternate weekend residential time, Christopher’s scheduled residential time with Caroline on her 13th birthday, and Christopher’s scheduled four-week residential time during the summer of 2000 that are particularly pertinent to the issues in this case.
Beginning on June 18, 2000, Christopher left several telephone messages for Sara in which he set forth the dates he wished to exercise his summer residential time with their children.
On July 14, 2000, Christopher went to Sara’s home to pick up the children for his weekend and summer residential time. Neither Sara nor the children were then at the home. Later that day, Kit called his father who then went back to Sara’s house in order to pick him up. When Christopher was at Sara’s house collecting Kit, he was told that Caroline was horseback riding and that she would be delivered to Christopher’s home later that day. However, Sara telephoned Christopher that day to tell him that Caroline was going to be staying with her instead of going with Christopher. The following day, Christopher again went to Sara’s house in an effort to obtain Caroline. Sara’s boyfriend answered the door and declined to supply Christopher with any information regarding Caroline’s whereabouts.
On July 18, 2000, Christopher sought an order from the Thurston County Superior Court establishing specific dates for his summer residential time. In response, Sara filed a declaration in which she stated that “Chris [topher] Rideout is taking me to court, but his dispute is with our daughter. Since she is still a minor, she is at a great disadvantage in this dispute and I get dragged into the middle of it no matter how hard I try to stay out.” CP at 27. On July 27, 2000, the superior court entered an order which provided that Christopher was to have residential time with Caroline from July 27, 2000, through August 24, 2000. The order also required Sara to transport Caroline to Christopher’s house at 4:00 p.m. on that day. Sara did not deliver the child to Christopher as she had been ordered.
Based on Sara’s alleged failure to comply with the alternate residential time awarded to Christopher, as set forth in the parenting plan, Christopher brought a motion for an
On August 3, 2000, based on Sara’s alleged “failure to comply with the . . . Parenting Plan . . . and with the Order to Set Dates Re Summer Visitation,” Christopher filed a second motion for contempt against Sara. In that motion, Christopher stated that “I have not seen Caroline since July 13, 2000.” CP at 55-56. He further declared that “I have already filed a motion regarding denial of my alternate weekend visitation. ... I have not had any alternate weekend visitations.” CP at 56.
A show cause hearing on both show cause orders was held before a superior court commissioner on August 17, 2000. It focused on (1) the provisions of the parenting plan relating to alternate weekend residential time, (2) the parties’ mutual agreement that Christopher would have residential time with Caroline on her 13th birthday, and (3) Sara’s alleged failure to comply with the July 27, 2000, order regarding summer residential time. Christopher and Sara were each represented by attorneys at this hearing.
Some of Christopher’s declarations described a pattern of behavior by Sara during the summers of 1998, 1999, and 2000 in which Sara allegedly failed to comply with the parenting plan insofar as it provided for Christopher’s summer and alternate weekend residential time with Caroline. More specifically, Christopher alleged that in the summer of 1998, he planned to take Caroline and Kit with him on vacation during a portion of his four weeks of summer residential time with the children. Christopher indicated that shortly before they were to leave for the vacation, Sara called him to say that Caroline would not be going on vacation with him and that he could come over to her home and “drag Caroline out.” CP at 13. Christopher claimed that, as a consequence, he “[r]eluctantly . . . forfeited a week and a half [of his summer residential time].” Id.
In addition, Christopher declared that in the summer of 1999, as he was planning to leave on a two-week trip with the children, Sara called Christopher to say that Caroline was ill. Christopher indicated that he waited two days for Caroline to recover from her illness, but was then informed by Sara that Caroline was still ill. Again, Christopher had a shortened summer residential time with Caroline.
After considering the declarations and argument of counsel, the court commissioner entered findings of fact and conclusions of law. Among the findings of fact are the following:
2. That parenting plan included provisions for summer residential time with both parents. Specifically, the plan indicated that during the summer the children reside with the father (a) for alternate weekend visitation, (b) for one or two blocks totaling four weeks, and (c) for alternating birthdays. The remaining time was to be spent with the mother, unless otherwise agreed.
3. The father provided notice to the mother of proposed times for this summer. The mother disagreed.
5. After the father submitted his request for summer visitation, the mother denied access to his daughter (a) for the four week period, (b) for the every other weekend schedule, and (c) and for the daughter’s thirteenth birthday. . . .
6. An Order to Set Dates Re: Summer Visitation was signed by [the superior court] on July 27, 2000. The terms of that order required the mother to deliver the daughter to the father on July 27, 2000, at 4:00 p.m.
7. Although the mother went to the father’s home in the afternoon and evening on July 27, 2000, first to pick up and then to deliver the parties’ son, she did not deliver the daughter, as required by the court order entered earlier*347 that day. As of the hearing of August 10, 2000, the mother had still not delivered the daughter to her father.
The mother has overly involved the minor daughter in this action, including facilitating the daughter’s signing a statement which was filed in this action. o rH
11. Ms. Rideout is an intelligent, competent, and capable parent with the ability to cause her thirteen year old to comply [with] the court’s orders, yet the mother has failed to do so. She was charged with a duty to comply with an order, had the ability to comply, and failed to do so.
12. The parties agree that the father was to have the daughter, Caroline, for her thirteenth birthday on August 1, 2000. The mother did not make the daughter available to the father on her birthday. . . .
13. Ms. Rideout failed to comply with the terms of the parenting plan by not allowing for every other weekend visitation on at least one occasion.
16. The fact that the daughter does not live on her own and has lived in the home of the mother is evidence that the mother could have caused the daughter to visit her father.
CP at 64-65.
Based on these findings of fact, the court commissioner held that Sara was responsible for making reasonable efforts to ensure Caroline’s compliance with the residential time order, reasoning that “[a] child of twelve or thirteen is not of a sufficient age and maturity that she can be given decision-making authority over whether visitation occurs.” CP at 65. The commissioner also concluded that:
3. Although the mother failed to comply with the terms of the parenting plan by not allowing for every other weekend visitation, her actions do not rise to the level of bad faith.
4. [However, a] finding of contempt, warranted by bad faith, should be entered for the mother’s refusal or failure to comply with the terms of the court’s order of July 27, 2000.
CP at 65-66.
Sara appealed the superior court’s decision to the Court of Appeals, Division Two. Christopher cross-appealed the portion of the decision relating to attorney fees. The Court of Appeals upheld the trial court’s determination that Sara was in contempt of court. In re Marriage of Rideout, 110 Wn. App. 370, 377, 40 P.3d 1192, review granted, 147 Wn.2d 1008, 54 P.3d 1212 (2002). In doing so, it concluded that it would not review the documentary materials and affidavits de novo but would determine only whether substantial evidence supported the trial court’s determination that Sara had acted in “bad faith.” Upon reviewing the documentary evidence and affidavits, the Court of Appeals concluded that when a child resists residential time, a parent may be held in contempt if he or she either contributed to the child’s attitude or failed to make reasonable efforts to make the child comply. The Court of Appeals held that there was sufficient evidence of both grounds. On Christopher’s cross-appeal, the Court of Appeals affirmed the amount of attorney fees awarded by the superior court commissioner. It did, however, award Christopher attorney fees on appeal concluding that, as “the prevailing party on appeal,” he was entitled to fees pursuant to RCW 26.09.140 and RAP 18.1(f). Rideout, 110 Wn. App. at 382.
II. Standard of Review
An attempt by a parent to refuse to perform a duty provided in a parenting plan is deemed to be bad faith. RCW 26.09.160. 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. RCW 26.09.160(2)(b).
The contempt proceeding in this case was consid
Sara correctly observes that there are cases that stand for the proposition that appellate courts are in as good a position as trial courts to review written submissions and, thus, may generally review de novo decisions of trial courts that were based on affidavits and other documentary evidence. See, e.g., Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884 P.2d 592 (1994); Smith v. Skagit County, 75 Wn.2d 715, 718, 453 P.2d 832 (1969); In re Marriage of Flynn, 94 Wn. App. 185, 190, 972 P.2d 500 (1999); Danielson v. City of Seattle, 45 Wn. App. 235, 240, 724 P.2d 1115 (1986), aff’d, 108 Wn.2d 788, 742 P.2d 717 (1987). The aforementioned cases differ from the instant in that they did not require a determination of the credibility of a party. Here, credibility is very much at issue.
We agree with the Court of Appeals that no Washington appellate court reviewing documentary records has weighed credibility. Indeed, the general rule relating to de novo review applies only when the trial court has not seen or heard testimony requiring it to assess the credibility of the witnesses. Progressive Animal Welfare Soc’y, 125 Wn.2d
In seeking review here, Sara relied heavily on the fact that this court had granted review of a decision of the Court of Appeals in In re Parentage of Jannot, 110 Wn. App. 16, 37 P.3d 1265 (2002). There, Division Three of the Court of Appeals held that a trial court’s decision to deny a motion to modify a child custody provision in a dissolution decree or parenting plan on the basis of affidavits alone, without a hearing, is reviewed for an abuse of discretion and not de novo. Although Sara may have been encouraged by our decision to grant review of Division One’s decision in Jannot, her optimism was unwarranted since this court recently affirmed the Court of Appeals decision in that case. In re Parentage of Jannot, 149 Wn.2d 123, 65 P.3d 664 (2003). In doing so, we recognized that “local trial judges decide factual domestic relations questions on a regular basis” and consequently “stand in a better position than an appellate judge to decide whether submitted affidavits establish adequate cause for a full hearing on a petition to modify a parenting plan.” Id. at 126.
We hold here that the Court of Appeals correctly concluded that the substantial evidence standard of review should be applied here where competing documentary evidence had to be weighed and conflicts resolved. The application of the substantial evidence standard in cases such as this is a narrow exception to the general rule that where a trial court considers only documents, such as parties’ declarations, in reaching its decision, the appellate court may review such cases de novo because that court is in the same position as trial courts to review written submissions. See, e.g., Smith, 75 Wn.2d at 718-19.
Although an argument can and indeed has been advanced that the appellate court is in as good a position to judge credibility of witnesses when the record is entirely documentary, we reject that argument. As we noted in
The procedural safeguards of our court system strongly support the application of the substantial evidence standard of review. As noted, trial courts are better equipped than multijudge appellate courts to resolve conflicts and draw inferences from the evidence. In sum, we affirm the decision of the Court of Appeals, holding that the appropriate standard of review here is not de novo, but rather is whether the trial court’s findings of fact are supported by substantial evidence.
III. The Contempt Order
As we have indicated above, a parent who refuses to comply with duties imposed by a parenting plan is considered to have acted in “bad faith.” RCW 26.09.160(1). Parents are deemed to have the ability to comply with orders establishing residential provisions and the burden is on a noncomplying parent to establish by a preponderance of the evidence that he or she lacked the ability to comply with the residential provisions of a court-ordered parenting plan or
Here, the trial court was confronted with a showing of Sara’s failure to comply with a July 27, 2000, order of the trial court requiring her to deliver Caroline to Christopher at a specific time and location. Indeed, Sara does not dispute the fact that she did not comply with that order. Rather, she contends that her failure to comply was not in bad faith because she tried, albeit unsuccessfully, to persuade Caroline to visit her father at the time specified. The trial court did not accept that explanation, determining that Sara was a “competent, and capable parent” with the ability to require her 13-year-old daughter to comply with the court’s orders “yet... failed to do so.” CP at 65.
We must first determine if the findings of the trial court should be sustained. That question is easily answered because although Sara challenged the findings of the trial court at the Court of Appeals, she did not challenge any of its findings in her petition for review or in her supplemental brief. They are, therefore, verities. Furthermore, even if she had challenged the findings of the trial court, the challenge would not avail her, since this court is satisfied that the findings are supported by substantial evidence.
The more fundamental question before us is whether a contempt order is appropriate when a child refuses to attend a court-ordered residential time because the parent charged with facilitating that visit has, as the trial court found, either acquiesced in or encouraged the child’s refusal to visit? After examining relevant case law from other states,
The Court of Appeals correctly noted here that there are no prior Washington decisions directly addressing the question of whether a parent acts in bad faith by acquiescing in the child’s refusal to participate in trial-court-ordered residential time. Rideout, 110 Wn. App. at 377. Division One of that court once touched upon the issue when it observed that if a recalcitrant teenager refuses to spend time with his or her parent, and “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.” In re Marriage of James, 79 Wn. App. 436, 445, 903 P.2d 470 (1995). We agree with the Court of Appeals that this statement in the James decision was dictum because it had no bearing on the decision that was rendered. Rideout, 110 Wn. App. at 378. A later case, also from Division One of the Court of Appeals, is closer to the instant and related to a circumstance where a parent did more than simply acquiesce in the child’s choice. The case is In re Marriage of Farr, 87 Wn. App. 177, 940 P.2d 679 (1997), in which the court upheld an order holding a father in contempt. In doing so, it concluded that the trial court properly found that the father, though claiming that
Here, the record shows that the trial court carefully examined the voluminous record, including all of the submissions of the parties, and noted that it revealed that Sara did not deliver Caroline to her father, as she was directed to do by the trial court’s order on July 27, 2000, even though she had the ability to do so. Based on this finding and others, it concluded that an order of “contempt, warranted by bad faith, should be entered for [Sara’s] refusal or failure to comply with the terms of the court’s order of July 27, 2000.” CP at 66. We believe that this conclusion was justified and that it is supportive of the contempt order entered by the trial court pursuant to RCW 26.09.160(2)(b).
According to the parenting plan that was approved by the superior court at the time the Rideouts’ marriage was dissolved, Christopher was entitled to four weeks of residential time with Caroline every summer. The record shows that during the summers of both 1998 and 1999, Christopher did not obtain the time with Caroline that he was entitled to pursuant to the parenting plan. In the summer of 2000, as we have observed, Sara failed to make reasonable attempts to comply with the residential time provisions of the parenting plan, as she began to communicate through her actions and words that the issue of Caroline’s summer residential time with her father was between Caroline and Christopher. Although Caroline may not have wanted to visit her father on July 27, 2000, and on other occasions, Sara made no attempt to overcome the child’s intransigence or to deliver her to Christopher’s house on July 27, 2000, as she was ordered to do.
In light of the events of July 27, 2000, and those leading up to that unfortunate incident, which are summarized very succinctly in the trial court’s findings of fact, we find ourselves in agreement with the trial court and the Court of Appeals that Sara not only contributed to Caroline’s resistance to residential time with her father, but failed to make
In reaching the decision it did, the trial court noted a pattern of behavior by Sara that demonstrated an unwillingness on her part to assume responsibility for making reasonable efforts to comply with the provisions of the orders establishing residential time for Christopher. Although Sara portrayed herself as a powerless bystander without the ability to require Caroline to visit her father in accordance with the parenting plan and orders of the court, we agree with the trial court and the Court of Appeals that by doing so she sidestepped her responsibilities as a parent. There are no doubt numerous instances where a child may not want to visit with his or her parent in accordance with a parenting plan or pursuant to a specific order of the court. Whether they like it or not, parents, like Sara, have an obligation to attempt to overcome the child’s resistance to the residential time in order to ensure that a child’s residential time with the other parent takes place. Sara had that responsibility and failed to meet it by not assuring that Caroline visited with her father in accordance with the parenting plan and the subsequent order of the trial court. In other words, she was obligated to make good faith efforts to require Caroline to do so. See RCW 26.09.160(1). The trial court concluded that she did not measure up to this standard and, in our view, that determination was justified. The trial court’s determination was sensible and based on an acknowledgment that, while a parent should not be punished for the actions of a truly recalcitrant child, punishment is appropriate when the parent is the source of the child’s attitude or fails to overcome the child’s recalcitrance when, considering the child’s age and maturity, it is within that parent’s power to do so.
In sum, we hold that where a child resists court-ordered residential time and where the evidence establishes that a parent either contributes to the child’s attitude or fails to
IV. Attorney Fees
A. Awarded by Court of Appeals
Sara contends that the Court of Appeals erred when it awarded attorney fees to Christopher pursuant to RCW 26.09.140, based on its determination that he was entitled to such fees as “the prevailing party on appeal.” Rideout, 110 Wn. App. at 382. In support of her contention, Sara argues that RCW 26.09.140 “permits awards of appellate fees based on need and ability to pa/’ and that “RCW 26.09.140 has nothing to do with prevailing parties.” Suppl. Br. of Pet’r at 16.
RCW 26.09.140 provides in relevant part that:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney’s fees or other professional fees in connection therewith ....
Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney’s fees in addition to statutory costs.
(Emphasis added.) We agree with Sara. The aforementioned statute does not support an award of attorney fees to a party simply on the basis that they are “prevailing.” Although the statute does invest appellate courts with discretion to order a party to pay fees and costs to the opposing party, that provision must be read in light of the fact that the statute ties the award of fees to a consideration of financial circumstances. Here, there is no indication that
However, Christopher also sought fees at the Court of Appeals under RCW 26.09.160. Concluding that an award of fees was appropriate under RCW 26.09.140, the Court of Appeals made no mention of Christopher’s request under RCW 26.09.160. Rideout, 110 Wn. App. at 382. On appeal, “[w]e may affirm the [lower] court on any grounds established by the pleadings and supported by the record.” Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 766, 58 P.3d 276 (2002). Indeed, a reviewing court can sustain a grant of attorney fees under a different statute than the one relied upon by the lower court. State ex rel. A.N.C. v. Grenley, 91 Wn. App. 919, 927-28, 959 P.2d 1130, review denied, 136 Wn.2d 1031, 972 P.2d 467 (1998).
RCW 26.09.160(1) provides as follows:
An attempt by a parent... to refuse to perform the duties provided in the parenting plan, . . . shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court and by awarding to the aggrieved party reasonable attorneys’ fees and costs incidental in bringing a motion for contempt of court.
(Emphasis added.) In addition, RCW 26.09.160(2)(b)(ii) provides:
(b) If, based on all the facts and circumstances, the court finds after hearing that the parent, in bad faith, has not complied with the order establishing residential provisions for the child, the court shall find the parent in contempt of court. Upon a finding of contempt, the court shall order:
(ii) The parent to pay, to the moving party, all court costs and reasonable attorneys’ fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning a child ....
As we have observed above, Sara acted in bad faith in not complying with the court order establishing residential provisions for Caroline. She must, therefore, pay Christopher’s attorney fees and costs for his appeal to the Court of Appeals, in accordance with RCW 26.09.160(1), (2)(b)(ii).
B. For Proceedings in this Court
Christopher and Sara each ask this court to grant them reasonable attorney fees and costs for the proceedings before this court. As he did at the Court of Appeals, Christopher bases his claim for fees on the provisions of RCW 26.09.140 and RCW 26.09.160. Sara rejects Christopher’s claim for an award of fees and requests that she be awarded fees pursuant to RCW 26.09.140, asserting that she is “unable to pay her appellate attorney fees.” Suppl. Br. of Pet’r at 18-19.
Due to Sara’s bad faith in complying with the parenting plan, she must also pay Christopher’s attorney fees and costs for his appeal to this court, in accordance with RCW 26.09.160(1), (2)(b)(ii). In light of that conclusion, we deny Sara’s request for attorney fees.
V. Conclusion
In sum, we affirm the Court of Appeals holding that, notwithstanding the fact that the record was entirely documentary, the superior court’s findings should be given
Though the parenting plan specifies that Christopher’s summer residential “blocks of time” are to be at his option, Sara “admit[ted]” in a declaration that “[a]s to the specifics of the [summer residential] schedule,... [i]t has been [her] role to coordinate visitation.” CP at 5, 32.
That motion was denied by the superior court.
Christopher did not seek review of the Court of Appeals decision regarding attorney fees.
RCW 26.09.160 is contained in chapter 26.09 RCW. The policy behind that chapter was pronounced by the legislature in RCW 26.09.002, as follows: “Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent
Only the superior court’s decision is at issue because “once the superior court makes a decision on revision, the appeal is from the superior court’s decision, not the commissioner’s.” State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003).
See, e.g., MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App. 2001) (where the court rejected the notion that a child’s resistance may excuse a missed visitation); Hartzell v. Norman T.L., 629 N.E.2d 1292, 1295 (Ind. Ct. App. 1994) (“[A]n adolescent’s refusal to cooperate with scheduled visitation cannot divest a dissolution court of its authority to enforce its visitation orders.”); Clark v. Atkins, 489 N.E.2d 90, 97 (Ind. Ct. App. 1986) (rejecting mother’s argument that her minor children’s refusal to visit their father justified her noncompliance with a visitation order); Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415, 420 (1996) (Where the court held that where “the custodial parent does not prevent visitation but takes no action to force visitation when the child refuses to go,” a
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