In Re The Parenting And Support Of: A.p. David Parsons, Res. v. Tanya Goodman, App. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parenting and
Support of: DIVISION ONE
A.P., child. No. 79118-4-1
DAVID PARSONS, UNPUBLISHED OPINION
Respondent,
V.
TANYA GOODMAN,
FILED: August 5, 2019
DWYER, J. — Tanya Goodman appeals from an order of the superior court
denying her motion for revision of a commissioner's order finding her in contempt
of court for two violations of a parenting plan. Because she did not violate a
court order, Goodman contends, the trial court erred by holding her in contempt
of court. Goodman asserts that because her actions violated only arbitration
rulings that had not been confirmed by the superior court, she cannot be held in
contempt of court for her actions. Finding no error with respect to one order of
contempt, we affirm that ruling. We do find error on the second order of
contempt; nevertheless, we affirm the trial court's ordered sanctions on other
grounds.
Tanya Goodman and David Parsons are parents of A.P., born August 7,
2014. The parties were never married nor did they ever live together. For the
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two years after A.P.'s birth, Goodman and Parsons had a contentious and
combative relationship in their attempt to co-parent A.P. In 2015, recognizing
that this parenting situation was untenable, Parsons petitioned the court for a
parenting plan. In October 2016, after a four-day bench trial, the court ordered a
parenting plan to regulate the relationship between Goodman and Parsons with
respect to the raising of A.P. The parenting plan was entered on November 16,
2016.
The parenting plan between Goodman and Parsons details the parties'
decision-making ability with respect to A.P., their dispute resolution process, and
A.P.'s residential schedule. The plan's residential provision grants Parsons
custody of A.P. every Thursday night unless otherwise agreed to by the parties.
Following the implementation of the parenting plan, the contentious behavior
between Goodman and Parsons continued. On February 17, 2017, the court
appointed a parenting coordinator to improve communication between the
parties, facilitate dispute resolution, aid interpretation of the parenting plan, and
make recommendations to the court regarding potential modifications to the
parenting plan.
Soon thereafter, on April 27, 2017, at the parenting coordinator's
suggestion, Parsons and Goodman agreed to change the dispute resolution
provision of the original parenting plan. The court modified the original parenting
plan's dispute resolution provision and appointed an arbitrator to resolve any
future disputes that arose between the parties concerning the meaning of the
plan. The order appointing an arbitrator states in full:
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Section 6.a. of the Final Parenting Plan is hereby amended to read:
From time to time, the parents may have disagreements about
shared decisions or about what parts of this parenting plan mean.
a. To resolve disagreements about this parenting plan, the parents
will go to the dispute resolution provider below (before they may
go to court):
Arbitration with Lawrence Besk, Cheryl Russell, or Boyd
Buckingham, whoever is first available.
Important! Unless there is an emergency, the parents must
participate in the dispute resolution process listed above in good
faith, before going to court. This section does not apply to
disagreements about money, support, enforcement of
provisions of the parenting plan or modifications of any of its
provisions.
In addition to appointing an arbitrator for dispute resolution, the court
decreed that "[t]he Parent Coordinator shall have the authority to establish
guidelines related to exchanges of the child and phone calls between the parents
and the child."
Following this modification of the plan by the court, over the next year, the
arbitrator made five rulings to resolve conflicts between the parties. Though the
arbitrator's instructions to the parties stated that "Mt will be up to the parties and
their attorneys to have the arbitrator's award confirmed with the Court," no party
sought confirmation of the various arbitration rulings prior to June 2018.
A June 27, 2017 arbitration award implemented a telephone access
provision that was agreed to and signed by both parties:
The Parenting Plan is silent on communications between the then
non-residential parent and the minor child. It is in the best interest
of the minor child to have communication with the then non-
residential parent. Such a provision protects both parents from
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going for extended periods of time without talking with their son. I
am adding to the Parenting Plan the following provision:
Telephone Access: The child shall have liberal telephone
privileges with the parent with whom the child is not then
residing without interference of the residential parent. This
shall include the minor child calling the other parent, or the
other parent calling the minor child. If the parents cannot
agree on the definition of "liberal," it shall be defined as one
completed telephone call or Facetime per day at reasonable
hours and for a reasonable duration. Any calls shall be
completed by 8:00 p.m. at the latest. If the residential parent
is absent, the calling parent shall leave a message which
shall be returned by the child (or the residential parent on
behalf of the child) once the child is again available.
Nevertheless, on nine specific instances between July and November
2017, Goodman prevented Parsons from contacting A.P. via Facetime or
telephone.
On Thursday May 24, 2018, Goodman picked A.P. up from school on
Parsons' residential day to begin her Memorial Day holiday weekend early.
Goodman claimed that she was interpreting the school calendar provision of the
arbitration award,' despite the language of the residential provisions of the
parenting plan stating otherwise.
On June 11, 2018, Parsons had five arbitration awards from the previous
year confirmed by the superior court, including the June 27, 2017 award, which
contained the telephone access provision. On June 26, 2018, Parsons filed a
motion in court, seeking to enforce the parenting plan and arbitration awards, by
obtaining a ruling that Goodman was in contempt of court for (1) picking up A.P.
1 The arbitrator's award at issue states: "I am clarifying section 10 of the Parenting Plan
to provide that the Monday holidays include the prior weekend. The holiday shall begin after
school on Friday and end with the return of the child to school after the Monday holiday."
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from school on May 24, 2018 during Parsons' residential time and keeping A.P.
overnight, and (2)for her continued violations of the of the telephone access
provision.
A contempt hearing was held before a family law commissioner on July
12, 2018. At the hearing, the commissioner entertained testimony from both
parties and reviewed evidence including the parenting plan, the arbitration
awards, e-mails, and text messages exchanged between the parties. The
commissioner found Goodman in contempt of the parenting plan for "willfully and
in bad faith" withholding A.P. from Parsons on the May 24, 2018 overnight stay in
violation of the November 16, 2016 parenting plan, and for failing to comply with
the telephone access provision established by the June 27, 2017 arbitration
ruling. The commissioner ordered that Goodman pay a civil penalty ($100),
attorney fees ($3,968.75), and costs ($200), in addition to ordering that Goodman
provide Parsons "one overnight(24 hours) at Petitioners' discretion with 7 days[']
notice."
Following the commissioner's ruling, Goodman filed a motion in the
superior court for revision of the commissioner's order. At the hearing before a
superior court judge on September 21, 2018, the court denied Goodman's motion
for revision and ordered her in contempt for withholding A.P. from Parsons during
his residential overnight on May 24, 2018, and for failing to honor the telephone
access provision on nine occasions. The court did not order an award of fees for
the revision hearing. Goodman now appeals from the superior court's order.
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11
Goodman avers that the superior court commissioner erred by issuing two
orders of contempt of court against her based on two violations of unconfirmed
arbitration rulings. This is so, she asserts, because individuals may only be
ordered in contempt for violating court orders, and an unconfirmed arbitration
award is not an order of the court for the purposes of contempt. Goodman's
argument that a contempt finding requires an underlying court order and an
unconfirmed arbitration award is not a court order is a correct interpretation of the
law. The trial court did err by finding Goodman in contempt for violating the
telephone access provision of the June 27, 2017 unconfirmed arbitration award.
However, the sanctions imposed by the trial court are authorized by another
applicable statute. Further, Goodman's argument that the trial court erred by
finding her in contempt with respect to the May 24, 2018 overnight visit is without
merit
A
Goodman and Parsons agree that the trial court's order finding Goodman
in contempt of court is controlled by RCW 7.21.010. Thus, we must first consider
whether an underlying court order is required in order to find a party in contempt
of court. We conclude that it is.
The relevant statute provides:
(1) "Contempt of court" means intentional:
(b) Disobedience of any lawful judgement, decree, order, or
process of the court.
RCW 7.21.010.
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Parsons contends that RCW 7.21.010 does not explicitly require violation
of a court order for the court to find a party in contempt. This is so, he asserts,
because arbitration in this case was court ordered and, thus, the arbitration
functioned as a "process of the court" within the definition of RCW 7.21.010(b).
Parsons's interpretation of RCW 7.21.010 is wrong.
We review the meaning of a statute de novo. Dep't of Ecology v.
Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4(2002). When interpreting a
statute, we must discern and implement the intent of the legislature. Johnson v.
Recreational Equip., Inc., 159 Wash. App. 939, 946, 247 P.3d 18(2011)(citing
Campbell & Gwinn, 146 Wash. 2d at 9). "[I]f the statute's meaning is plain on its
face, then the court must give effect to that plain meaning as an expression of
legislative intent." Campbell & Gwinn, 146 Wash. 2d at 9-10. We discern the plain
meaning of the statute is from the ordinary meaning of the language, the context
of the statute, its related provisions, and the statutory scheme as a whole. Lake
v. Woodcreek Homeowners Ass'n, 169 Wash. 2d 516, 526, 243 P.3d 1283(2010).
Parsons bases his argument on his interpretation of the word "process."
Based on his broad reading of the statute, Parsons seemingly defines "process"
as "something (as a series of actions, happenings, or experiences) going on or
carried on." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1808(2002).
However, we must construe statutes as a whole, endeavoring to give effect to all
the language therein. Rayner v. Neff, 110 Wash. App. 860, 863, 43 P.3d 35(2002)
(citing City of Seattle v. Fontanilla, 128 Wash. 2d 492, 498, 909 P.2d 1294 (1996)).
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As stated above, RCW 7.21.010 provides: "(1)'Contempt of court' means
intentional: . . .(b) Disobedience of any lawful judgment, decree, order, or
process of the court." Based on a construction that gives meaning to all of its
terms, it is plain that "lawful" modifies "judgment, decree, order" as well as
"process." "Lawful process" of the court does not refer to any action or result that
proceeds from a court order. Rather, "process" has a very specific definition in
this context. Black's Law Dictionary defines "process" as:
process n.(14c) 1. The proceedings in any action or prosecution
. 2. A summons or writ, esp. to appear or
respond in court . — Also termed judicial
process; legal process.
legal process.(17c) Process validly issued. —Also termed lawful
process.
BLACK'S LAW DICTIONARY 1399 (10th ed. 2014).
There are countless examples of this use of "process" being employed by
the legislature and by the courts. See, e.g., CR 4(process); Cito v. Rios, 3 Wn.
App. 2d 748, 418 P.3d 811, review denied, 191 Wn.2d 1017(2018)(service of
process).2
The legislative context of RCW 7.21.010 confirms the legislative intent that
"process" in this context refers to legal process. As used in the statute, "lawful" is
an adjective that modifies four nouns: "judgment," "decree," "order," and
"process." A less concise phrasing of this statute would be: "lawful judgment of
2 Notably, there is no Washington case law in which contempt orders have
resulted from
the violation of arbitration awards, not confirmed by the court. There are cases in which
confirmed arbitration awards served as the basis for a contempt of court ruling. See Cohen v.
Graham,44 Wn. App. 712, 715, 722 P.2d 1388 (1986).
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the court, lawful decree of the court, lawful order of the court, or lawful process of
the court."
Thus, contempt can only be found, based on this subsection, when there
is a violation of an underlying order or official decree of the court. Arbitration is
by definition an alternative to the judicial process and an arbitration forum is not a
court. Grays Harbor County v. Williamson, 96 Wash. 2d 147, 153, 634 P.2d 296
(1981).
The first order of contempt at issue is based on Goodman's actions on
Thursday, May 24, 2018 when she picked A.P. up from school on Parsons'
residential day. Here, the court did not err by finding Goodman in contempt
because her actions clearly violated a residential provision of the court-ordered
parenting plan. Thus, a court order was violated.
Goodman avers that her disagreement with Parsons regarding the May
24, 2018 residential schedule took place before pertinent arbitration decisions
were confirmed by the court in June 2018 and, thus, she did not violate a court
order. As to this contempt finding, this argument fails because Goodman's
actions on May 24, 2018 clearly violated a residential provision contained in the
original parenting plan entered by the court on November 16, 2016. Goodman's
assertion that her actions occurred prior to the court's confirmation of controlling
arbitration awards is correct, yet irrelevant with respect to this contempt finding.
We review a trial court's decision to hold a party in contempt for abuse of
judicial discretion and uphold the trial court's contempt finding if a proper basis
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for contempt can be found. Dep't of Ecology v. Tiger Oil Corp., 166 Wash. App.
720, 768, 271 P.3d 331 (2012)(citing Stella Sales, Inc. v. Johnson, 97 Wash. App.
11, 20, 985 P.2d 391 (1999)).
A parenting plan is an order of the court. RCW 26.09.004(3). The
interpretation of a parenting plan is a question of law. Kirshenbaum v.
Kirshenbaum, 84 Wash. App. 798, 803, 929 P.2d 1204 (1997). Residential
Provision 8(b) of the November 16, 2016 parenting plan plainly states that
Parsons is to have custody of A.P. every Thursday overnight unless there is a
prior agreement to the contrary. Goodman picked up A.P. early from school on
Thursday, May 24 2018, and withheld him overnight from Parsons in clear
violation of the court-ordered parenting plan.
Substantial evidence supports the trial court's finding that Goodman
violated, in bad faith, the court-ordered parenting plan establishing residential
provisions for A.P. The trial court credibly found that given the case's litigious
history and the fact that Goodman failed to communicate with Parsons after
picking up A.P. from school on Parsons' residential day, Goodman violated the
plain language of the residential provision of the parenting plan in bad faith.
Thus, the trial court did not abuse its discretion by finding Goodman in
contempt of court for the violation of a residential provision of the original
parenting plan that was entered with the court on November 16, 2016.
The second order of contempt is based on the nine instances between
July and November 2017 when Goodman prevented Parsons from contacting
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A.P. via Facetime. Here, the court erred by finding Goodman in contempt
because Goodman merely violated arbitration rulings that were unconfirmed by
the court. This falls outside the court's power to find a party in contempt.
When a contempt ruling is based on an incorrect view of the law or an
incorrect legal analysis, it is an abuse of judicial discretion and we must reverse
the trial court's finding of contempt. In re Estates of Smaldino, 151 Wash. App.
356, 364, 212 P.3d 579 (2009). As discussed herein, in order for the court to
hold a party in contempt there must be an underlying court order. In re Marriage
of Humphreys, 79 Wash. App. 596, 599, 903 P.2d 1012 (1995). The law is clear
that an unconfirmed arbitration award is not enforceable as a court order until it is
confirmed by the court. RCW 7.04A.250(1); Grays Harbor, 96 Wash. 2d at 153.
Here, Goodman's actions that formed the basis of the court's contempt
order for violating the telephone access provision occurred from July through
November 2017 and, thus, occurred prior to the court's confirmation of the award
containing that provision, which took place on June 11, 2018. Thus there was no
underlying court order upon which the court could base a contempt finding. This
was, thus, an untenable ground on which to find Goodman to be in contempt of
court. The finding of contempt was improper as to these allegations.
lll
Respondent cites to, but does not urge as controlling, the provisions of
chapter 26.09 RCW. We believe that these motions should have been brought
pursuant to this chapter and that it supports the various remedies imposed.
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Though neither party contends that chapter 26.09 RCW controls the
imposition of sanctions here, this chapter is material to resolving the issues
presented. The chapter authorizes contempt proceedings for the purpose of
coercing compliance with a parenting plan including its residential provisions.
RCW 26.09.160(2)(a). Contempt in this context is civil rather than criminal.
Thus, it is remedial and purgeable upon a party achieving compliance with the
court order. RCW 26.09.160.
In addition, courts are authorized by RCW 26.06.160 to sanction parents
for parenting plan violations and authorized under RCW 26.09.184(4) to sanction
parents for frustrating the dispute resolution process of a parenting plan, which
includes arbitration.
A
RCW 26.09.160 provides the applicable contempt statute concerning
Goodman's withholding of A.P. from the May 24, 2018 overnight stay. Courts are
authorized under RCW 26.09.160 to sanction a parent for parenting plan
violations and "fflailure 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." RCW 26.09.184(7). Indeed, a parent may be held in contempt for
the violation of a residential provision in a parenting plan. RCW 26.09.160
provides:
(2)(a) 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 not complied with the order, the court may
issue an order to show cause why the relief requested should not
be granted.
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(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:
(i) The noncomplying parent to provide the moving party
additional time with the child. The additional time shall be equal to
the time missed with the child, due to the parent's noncompliance;
(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; and
(iii) The parent to pay, to the moving party, a civil penalty, not
less than the sum of one hundred dollars.
(6) Subsections (1),(2), and (3) of this section authorize the
exercise of the court's power to impose remedial sanctions for
contempt of court and is in addition to any other contempt power
the court may possess.
As discussed herein, the trial court credibly found that Goodman had
violated the residential provision of the court-ordered parenting plan. Thus, the
trial court properly acted within the statutory authority of RCW 26.09.160(2) by
finding Goodman in contempt of court for this violation.
RCW 26.09.184(4) also authorizes the imposition of the monetary
sanctions imposed on Goodman by the trial court for violating the telephone
access provision of the June 27, 2017 arbitration ruling.3 Courts are authorized
under RCW 26.09.184(4)(d) to impose monetary sanctions for "frustrat[ing] the
dispute resolution process" of a parenting plan, "without good reason." The
dispute resolution process includes arbitration. We conclude that intentionally
3 Although respondent does not cite to this provision in defense of the superior court's
ruling, we may affirm the trial court on any ground supported by the record. Wash. Fed. Say. &
Loan Ass'n v. Alsager, 165 Wash. App. 10, 14, 266 P.3d, 905 (2011).
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violating arbitration rulings can constitute the frustration of the arbitration process
and, thus, be economically sanctionable.
RCW 26.09.184(4)(b) establishes a process by which the parties to a
parenting plan may resort to arbitration to "resolve disputes relating to the
implementation of the plan." "The court's authority to mandate arbitration of
disputes about the implementation of parenting plans derives solely from [former]
RCW 26.09.184(3)." In re Parentaoe of Smith-Bartlett, 95 Wash. App. 633, 637-38,
976 P.2d 173(1999). The relevant statute provides:
(4) DISPUTE RESOLUTION. A process for resolving
disputes, other than court action, shall be provided unless
precluded or limited by RCW 26.09.187 or 26.09.191. A dispute
resolution process may include counseling, mediation, or arbitration
by a specified individual or agency, or court action. In the dispute
resolution process:
(c) A written record shall be prepared of any agreement
reached in counseling or mediation and of each arbitration award
and shall be provided to each party;
(d) If the court finds that a parent has used or frustrated the
dispute resolution process without good reason, the court shall
award attorneys' fees and financial sanctions to the prevailing
parent.
RCW 26.09.184(4).
Here, a "written record" of the award at issue was provided to each party.
Thus, Goodman's non-compliance with the arbitration ruling was a sanctionable
offense pursuant to RCW 26.09.184(4)(d). Based on the facts in the record and
the finding of the trial court judge, Goodman clearly violated the arbitrator's
award in bad faith. Accordingly, an award of attorney fees and financial
sanctions were appropriately imposed. Though a contempt finding was
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improper, the sanctions imposed were proper pursuant to RCW 26.09.184(4)(d)
for frustration of the dispute resolution process.
Iv
Goodman contends that, because (in her view) the contempt of court
orders were based on untenable grounds, we should vacate the trial court's
award of attorney fees and other sanctions against her. To the contrary, the
sanctions imposed by the superior court were authorized by controlling statutes.
The commissioner ordered that, as sanctions, Goodman pay a civil
penalty ($100), attorney fees ($3,968.75), and costs ($200). It was also ordered
that Goodman provide Parsons an overnight(24 hours) at his discretion with
seven days' notice.
We affirm the overnight sanction as restitution for a valid order of
contempt under RCW 26.09.160(2)(b). We affirm the attorney fees and financial
sanctions as they fall within the statutorily applicable sanctions for frustrating the
dispute resolution process under RCW 26.09.184(4)(d) and as sanctions for the
finding of contempt regarding the Thursday overnight.
With respect to Goodman's violation of the residential schedule on May
24, 2018, RCW 26.09.160(2) authorizes the following statutory sanctions:
(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:
(i) The noncomplying parent to provide the moving party
additional time with the child. The additional time shall be equal to
the time missed with the child, due to the parent's noncompliance;
(ii) The parent to pay, to the moving party, all court costs and
reasonable attorneys' fees incurred as a result of the
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noncompliance, and any reasonable expenses incurred in locating
or returning a child; and
(iii) The parent to pay, to the moving party, a civil penalty, not
less than the sum of one hundred dollars.
Regarding Goodman's violation of the arbitration decision that established
the telephone access provision, RCW 26.09.184(4)(d) authorizes the trial court to
"award attorneys'fees and financial sanctions" if it finds that a parent has
"frustrated the dispute resolution process without good reason."
The sanctions that the trial court imposed on Goodman, a civil penalty,
attorney fees, costs, and an overnight visit for the child with Parsons, are within
the applicable statutory sanctions provided based on Goodman's violation of a
residential provision of the parenting plan and her frustration of the dispute
resolution process established by the parenting plan.
Thus, we affirm the civil penalty ($100), attorney fee award ($3,968.75),
assessed costs ($200), and the overnight granted to Parsons.
V
Goodman requests an award of appellate attorney fees and costs
pursuant to RAP 18.1. Parsons, likewise, requests that the court award him
costs and fees.
RAP 18.1 allows this court to award attorney fees on appeal if applicable
law provides for an award of fees. Only Parsons cites to the applicable law
herein, RCW 26.09.140, which states that "[u]pon 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 attorneys' fees in addition to statutory costs."
Because we conclude that Parsons is the substantially prevailing party, we award
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fees and costs to Parsons under RCW 26.09.140 and RAP 18.1. Goodman's
request for an award of fees is denied.
Upon proper application, a commissioner of our court will enter an
appropriate order.
VI
The first finding of contempt is affirmed. The imposition of all sanctions is
affirmed.
Affirmed.
WE CONCUR:
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