In Re The Marriage Of: Jack Miller v. Marilyn L. Miller ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
September 18, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of No. 50907-5-II
JACK DEAN MILLER,
Respondent,
and
MARILYN LOUISE MILLER,
UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Marilyn McCormick1 appeals the trial court’s order denying her motion
for reconsideration regarding attorney fees and costs for a contempt proceeding. McCormick
brought a contempt action against her former husband, Jack Miller, after he failed to pay her
monthly spousal maintenance. The trial court found Miller in contempt for willfully violating
the divorce decree by not paying McCormick maintenance. However, the trial court denied
McCormick’s request for attorney fees and costs. The trial court then denied McCormick’s
motion for reconsideration on this issue.2
We hold that because McCormick was the prevailing party in the contempt action, and
because the relevant statute mandates an award of costs including reasonable attorney fees, the
trial court abused its discretion by denying McCormick’s request. We reverse the trial court’s
1
Marilyn McCormick was previously known as Marilyn Miller.
2
The order of reconsideration on appeal granted McCormick some relief in the form of
clarifying an award of interest.
No. 50907-5-II
order insofar as it denied McCormick’s costs and reasonable attorney fees, and we remand with
instructions for the trial court to award McCormick costs including reasonable attorney fees. We
also award McCormick costs including reasonable attorney fees on appeal.
FACTS
Marilyn McCormick and Jack Miller divorced in April 2015. The dissolution decree
obligated Miller to pay McCormick $2,500 in monthly spousal maintenance for 48 months
following the dissolution.
In March 2017, Miller filed a motion to modify spousal support in Pierce County
Superior Court. Then on April 7, 2017, McCormick filed a motion for a contempt hearing,
asserting that Miller did not pay spousal maintenance for the months of January through April
2017. McCormick requested an order requiring Miller to show cause as to why he should not be
held in contempt. McCormick also requested reasonable attorney fees and costs. A court
commissioner ruled that although Miller did not obey the support orders, he was not in contempt
because his failure to pay was not willful. The commissioner also temporarily reduced Miller’s
maintenance payment to $1,500 per month. McCormick then filed a motion for revision of the
commissioner’s rulings. McCormick also sought reasonable attorney fees and costs.
The trial court reversed the commissioner’s ruling that reduced Miller’s maintenance
payments and further found that that Miller did “willfully” violate the maintenance order by
failing to show that he did not have the ability to pay McCormick, and by prioritizing other bills.
Clerk’s Papers at 418. Thus, the court found Miller to be in contempt and ordered him to pay
McCormick for past due support. However, the court denied McCormick’s request for
reasonable attorney fees and costs.
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No. 50907-5-II
McCormick then filed a motion for reconsideration of the court’s denial of her request for
attorney fees and costs. McCormick argued that under RCW 26.18.1603 an award of fees and
costs to the prevailing party is mandatory in a contempt action, and that as the prevailing party
she was entitled to costs including reasonable attorney fees. The court denied McCormick’s
motion for reconsideration, stating that it believed it had discretion whether to order reasonable
attorney fees under the statute.
McCormick appeals the trial court’s order denying her motion for reconsideration.
ANALYSIS
McCormick argues that she is entitled to reasonable attorney fees and costs under RCW
26.18.160 because she is the prevailing party. McCormick also argues that she is entitled to fees
and costs on appeal. Miller responds that attorney fees are not mandatory under RCW
26.18.160.4 We agree with McCormick.
We review a trial court’s denial of reconsideration for abuse of discretion. Christian v.
Tohmeh, 191 Wash. App. 709, 728, 366 P.3d 16 (2015). A trial court necessarily abuses its
discretion if its ruling is based on an erroneous view of the law. In re Marriage of Herridge, 169
Wash. App. 290, 296-97, 279 P.3d 956 (2012). A trial court’s interpretation of a statute is a
3
RCW 26.18.160 provides that the prevailing party in an action to enforce a maintenance order
“is entitled” to a recovery of costs, including reasonable attorney fees.
4
Miller also appears to argue that the amount of fees sought by McCormick was unreasonable.
However, because the trial court did not award McCormick fees below, there has not been a
determination by the trial court as to a reasonable award of attorney fees, and we do not consider
this argument.
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No. 50907-5-II
question of law that we review de novo. In re Marriage of Zacapu & Zacapu-Oliver, 192 Wn.
App. 700, 705, 368 P.3d 242 (2016).
A party may initiate contempt proceedings as part of a dissolution action when the party
obligated to pay maintenance fails to comply with the support order. See RCW 26.18.050(1).
RCW 26.18.160 states that “[i]n any action to enforce a support or maintenance order under this
chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable
attorney fees.”
The parties here do not dispute that McCormick was the prevailing party in the contempt
action based on Miller’s failure to pay support. The only question is whether under RCW
26.18.160, the trial court was required to award McCormick costs including reasonable attorney
fees.
The primary goal of statutory interpretation is to discern and implement the legislature’s
intent. In re Parental Rights to K.J.B., 187 Wash. 2d 592, 596, 387 P.3d 1072 (2017). To
determine the plain meaning of a statute, we look at the context of the statute, related provisions,
and the statutory scheme as a whole. Whatcom Cty. v. Hirst, 186 Wash. 2d 648, 667, 381 P.3d 1
(2016). We may also determine the plain meaning of an undefined term from a standard English
dictionary. Citizens All. for Prop. Rights Legal Fund v. San Juan Cty., 184 Wash. 2d 428, 443, 359
P.3d 753 (2015).
The plain language of RCW 26.18.160 requires the trial court to award costs including
reasonable attorney fees to McCormick because she was the prevailing party in the contempt
action. Webster’s defines “entitled” as “to give a right or legal title to.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY at 758 (2002). The phrase “is entitled to” therefore instructs that a
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No. 50907-5-II
party who prevails in an enforcement action has a legal right to collect attorney fees and costs.
Therefore, an award for costs including reasonable attorney fees under RCW 26.18.160 is not
discretionary. This result is corroborated by In re Marriage of Nelson, 62 Wash. App. 515, 520,
814 P.2d 1208 (1991), which addressed this identical question and held that costs, including
reasonable attorney fees, are not discretionary under RCW 21.18.160.
Here, McCormick was the prevailing party in the contempt proceedings. Because RCW
26.18.160 requires an award of attorney fees to the prevailing party in a contempt action for
failure to pay support, the trial court abused its discretion when it declined to award McCormick
attorney fees and costs.
Accordingly, we reverse the trial court’s order on reconsideration on this issue and
remand to the trial court with instructions to award McCormick reasonable attorney fees and
costs.
ATTORNEY FEES ON APPEAL
McCormick also seeks attorney fees and costs on appeal. RAP 18.1 (a) allows a party to
recover its reasonable attorney fees and costs on appeal if an applicable law grants that party a
right to recover attorney fees and costs. RCW 26.18.160 encompasses both actions at trial and
on appeal. Matter of Paternity of M.H., 187 Wash. 2d 1, 13, 383 P.3d 1031 (2016). Because
McCormick is the prevailing party on appeal, we also award McCormick reasonable attorney
fees and costs on appeal under RCW 26.18.160 and RAP 18.1(a).
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No. 50907-5-II
CONCLUSION
We reverse the trial court’s order denying McCormick’s motion for reconsideration
insofar as it denies McCormick’s costs and reasonable attorney fees, and we remand with
instructions to the trial court to award McCormick reasonable fees and costs. We also award
McCormick reasonable fees and costs on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Johanson, J.
Melnick, J.
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