Thomas Baicy v. Danelle Shay ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
G£3
In the Matter of the Parenting )
and Support of ) No. 74221-3-1
BAINYA SHAY, Child. ) DIVISION ONE
THOMAS 0. BAICY, ) CO
UNPUBLISHED OPINION en
en
Appellant, )
and )
DANELLE M. SHAY, )
FILED: January 9, 2017
Respondent. )
Leach, J. — Thomas Baicy appeals trial court decisions finding him in contempt
for violating a parenting plan and failing to pay child support and ordering him to pay
attorney fees. Because the trial court did not abuse its discretion, we affirm. But because
Baicy raises a debatable issue on appeal, we deny respondent Danelle Shay's request
for sanctions.
Background
Baicy and Shay are the parents of a daughter, Bainya, born in 2005. The parenting
plan provides that Baicy take Bainya on the first, third, and fourth weekends of each
month. After taking Bainya the weekend of November 7, 2014, Baicy also took Bainya
the weekend of November 14.
No. 74221-3-1/2
In addition, a 2011 child support order requires Baicy to pay Shay $402.93 per
month. As of November 2014, Baicy had paid less than $400.00 that year.
That month, Shay asked the trial court to find Baicy in contempt of the trial court's
orders in failing to pay child support and violating the parenting plan's weekend allocation
provision. The trial court ordered Baicy to appear and show cause why he should not be
found in contempt on both accounts.
The parties and the trial court repeatedly delayed holding a contempt hearing. The
trial court originally set a December 2, 2014, date. The parties agreed to continue the
hearing to January 27, 2015, in part so that Baicy could find a lawyer. When Baicy did
not appear on that date, the trial court issued a bench warrant for his arrest. On July 15,
2015, the trial court quashed that warrant because Baicy agreed to attend a contempt
hearing two weeks later. A court commissioner finally held the contempt hearing on July
29,2015.
The commissioner ruled for Shay on several points. Using Baicy and Shay's
practice of counting weekends, he found that November 14-16 was the second weekend
of November, not the third, and that Baicy was thus in contempt. And he found that Baicy
had not fulfilled his child support obligations or produced evidence to support his defense
that he lacked the ability to pay. The commissioner awarded attorney fees and costs to
Shay and her attorney, Richard Cassady. The trial court affirmed these rulings and
denied Baicy's motion for revision.
No. 74221-3-1/3
Baicy appeals the trial court's orders finding him in contempt for violating the
parenting plan and failing to pay child support. He also appeals the trial court's award of
attorney fees and costs to Shay.
Standard of Review
We review the meaning of a court order de novo. We review a trial court's factual
decisions in a contempt proceeding for abuse of discretion.1 We will affirm a contempt
finding "even though the trial court did not rely on any particular theory as long as a proper
basis can be found."2 When the trial court weighs competing documentary evidence to
make credibility determinations about bad faith, we review those findings for substantial
evidence.3 We interpret parenting plans and child support orders de novo as questions
of law.4 Also, we review whether a party is entitled to recover any attorney fees as an
issue of law de novo.5 Although we are mindful that Baicy and Shay are acting pro se,
we hold self-represented litigants to the same standard as attorneys.6
Analysis
Contempt of Parenting Plan
Baicy asserts that the trial court misinterpreted the parenting plan in finding that it
requires the parties to count weekends by Fridays. We affirm the trial court's
interpretation.
1 In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995).
2 State v. Boatman, 104 Wn.2d 44, 46, 700 P.2d 1152 (1985).
3 In re Marriage of Rideout, 150 Wn.2d 337, 351-52, 77 P.3d 1174 (2003); ln_re
Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999).
4 In re Marriage of Cota. 177 Wn. App. 527, 534, 312 P.3d 695 (2013);
Kirshenbaum v. Kirshenbaum. 84 Wn. App. 798, 803, 929 P.2d 1204 (1997).
5 Ethridoe v. Hwang. 105 Wn. App. 447, 460, 20 P.3d 958 (2001).
6 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
No. 74221-3-1/4
We strictly interpret an order providing the basis for contempt proceedings.7
Where an order is ambiguous, we use general rules of construction that apply to statutes,
contracts, and other writings to determine the intent of the court that entered the original
order.8 We thus discern this order's meaning both from its plain language and using the
context rule: we view the document as a whole, including its subject matter and objective,
the circumstances surrounding its making, the parties' subsequent acts and conduct,
"'and the reasonableness of respective interpretations advocated by the parties.'"9
Here, the commissioner found that since May 2011 both Baicy and Shay followed
the practice of counting weekends by Fridays. The commissioner and trial court
interpreted the otherwise ambiguous weekend provision of the parenting plan in light of
that practice. In denying Baicy's motion to revise the contempt order, the trial court also
found that Baicy's argument was not credible because Baicy had also taken Bainya on
the previous weekend, meaning that under either counting method he took Bainya on
Shay's weekend with her.
Baicy asserts that the parenting plan does not describe the practice of counting
weekends by Fridays, so his violation of that practice cannot support a contempt finding.
He also challenges the trial court's reasoning that Baicy was in contempt either on the
November 7 or November 14 weekends because Shay did not raise this argument until
7 Graves v. Duerden. 51 Wn. App. 642, 647, 754 P.2d 1027 (1988).
8 In re Marriage of Chavez, 80 Wn. App. 432, 435-36, 909 P.2d 314 (1996).
9 In re Marriage of Litowitz, 146 Wn.2d 514, 528, 48 P.3d 261 (2002) (internal
quotation marks omitted) (quoting Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120
Wn.2d 573, 580-81, 844 P.2d 428 (1993)).
-4-
No. 74221-3-1/5
her reply in support of the motion. Baicy also alleges, without citing evidence, that Shay
consented to him taking Bainya the November 7 weekend.
We need not decide if the trial court would be justified in finding Baicy in contempt
for taking Bainya on a weekend other than the one Shay named in her contempt motion.
Like the rest of the parties' conduct after the trial court entered the parenting plan, Baicy
taking Bainya for the November 7 weekend is among the circumstances we can consider
in interpreting the parenting plan and the reasonableness of the parties' different
interpretations.10
Interpreting the parenting plan de novo, we agree with the trial court's conclusions.
The plain language of the weekend provision is ambiguous. That provision states that
Bainya "will reside with or be with [Baicy]: from the time school lets out (or 4:00 p.m. if
school not in session) Friday until school resumes (or 8:00 a.m. if school not in session)
Monday the first, third, and fourth weekends." Webster's defines "weekend" as "the end
of the week : the period between the close of one working or business or school week
and the beginning of the next (as from Friday evening to Monday morning or from
Saturday evening to Tuesday morning)."11 The term's context within the provision
indicates that the court intended a weekend to mean the period from Friday afternoon to
Monday morning. This does not resolve what the court meant by the "first, third, and
fourth weekends," however, since many single weekends fall into two months. Baicy's
proposed interpretation—that a weekend is Saturday and Sunday—would suffer from the
10 See Litowitz, 146 Wn.2d at 528.
11 Webster's Third New International Dictionary 2592 (2002).
No. 74221-3-1/6
same imprecision. Because the provision is ambiguous, we interpret it using the context
rule.12
Applying that rule, we agree with the shared conclusion of the commissioner and
the trial court. Baicy does not contest that the parties' practice since at least September
2012 has been to count weekends by Fridays.13 This practice indicates that Baicy and
Shay shared an understanding of the parenting plan's meaning; if Baicy sincerely had a
different understanding, he should have asked the court for guidance rather than keeping
his daughter two consecutive weekends—a result not permitted under any interpretation
of the parenting plan. The commissioner properly considered that "pattern of practice" in
interpreting the weekend provision.14 In light of this practice as well as the phrase's plain
language, the most reasonable interpretation of the "first, third, and fourth weekends" is
the weekends beginning on the first, third, and fourth Fridays of the month.
Baicy also contendsthat the trial court lacked the authority to hold a hearing in July
2015 on Shay's November 2014 contempt motion. Baicy provides no relevant authority
to support his argument that the trial court lacked personal jurisdiction over him. We
therefore decline to consider it.15 Baicy also cites no support for his assertion that the
eight-month period was "beyond the time permitted by law." Instead, the record shows
that Baicy's own actions caused the delay in the hearing.
12 In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999); see
Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990).
13 Shay dates the practice to the orders the trial court entered after trial in May
2011. Baicy points out that the final parenting plan has been in place only since
September 2012. This distinction does not affect our analysis.
14 See Litowitz, 146 Wn.2d at 528.
15 We need not consider arguments not supported by citation to pertinentauthority.
Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
-6-
No. 74221-3-1/7
Because the trial court had the authority to hold the contempt hearing and did not
misinterpret the parenting plan, its contempt order was not a manifest abuse of discretion.
We affirm the order finding Baicy in contempt for taking Bainya for the weekend of
November 14, 2014.
Contempt of Child Support Order
Baicy also challenges the order finding him in contempt for failing to pay child
support, claiming that he lacked the ability to comply.
To find a parent in contempt of a parenting plan or child support order, the trial
court must make a specific finding of bad faith.16 Where a parent asserts as a defense
that he or she cannot comply with a support order, the parent must "establish that he or
she exercised due diligence in seeking employment, in conserving assets, or otherwise
in rendering himself or herself able to comply with the court's order."17
Here, substantial evidence supports the trial court's finding that Baicy failed to
establish his inability to pay child support. The trial court found that Baicy was not credible
in claiming that he could not comply with the child support order. The trial court was in
the best position to make that evaluation.18 Baicy points to no evidence that he used "due
diligence" to seek employment or otherwise become able to pay. Nor does he point to
any evidence to rebut the trial court's finding that he failed to provide complete financial
records. Instead, the record supports the trial court's observations of numerous gaps in
16RCW26.09.160(2)(b).
17 RCW 26.18.050(4).
18 Rideout, 150 Wn.2d at 351.
No. 74221-3-1/8
the documentation he provided.19 We affirm the order finding Baicy in contempt of the
child support order.
Alleged Counterclaims
Next, Baicy asserts that the trial court should have decided claims Baicy made in
his response to Shay's contempt motion. We disagree.
Baicy alleged in his response that Shay and Cassady had brought a frivolous
motion and asked that the trial court sanction them.20 Baicy contends this was a
compulsory counterclaim.21 Baicy also alleged other claims unrelated to Shay's contempt
motion: that Shay should be held in contempt for using the vacation provision of the
parenting plan in bad faith and that the trial court should modify the plan.22 He asserts
that these are permissive counterclaims.23
The allegations Baicy made in his response were not counterclaims as Shay's
motion was not a pleading to which the rules about counterclaims apply.24 His claims are
not properly before this court on appeal. The trial court orders that Baicy appealed define
the scope of our review.25 Those orders did not address the claims Baicy now asserts.
We therefore decline to address those claims.
19 For example, Baicy's financial declaration claimed $4,504.84 in total monthly
household expenses, but the expenses he listed add up to only $2,204.34. And the bank
account records Baicy provided showed numerous transfers to a Visa card account, but
he provided no records for that account.
20 Baicy based this claim on the bare assertion that Shay and Cassady "should
have known" that November 14-16 was the third weekend of the month.
21 See CR 13(a).
22 This claim asserted that Shay abuses the provision and does not give
reasonable advance notice about "vacations" with Bainya.
23 See CR 13(b).
24 See CR 13(a), (b); CR 7(a).
25 RAP 2.4(a).
-8-
No. 74221-3-1/9
Moreover, a May 2012 order requires Baicy to seek advance permission from the
trial court before filing claims. The record contains no indication that Baicy received this
permission before asserting the claims he now asserts. And Baicy's claim that applying
the advance permission order to his contempt motion response would "shackle [his] due
process right[s]" lacks merit as none of the claims Baicy asserted in his response to the
contempt motion were defenses.
Attorney Fees in Child Support Proceeding
When the trial court finds that a parent has violated a child support order in bad
faith, "the court shall find the parent in contempt of court."26 And "the court shall order"
the contemnor to pay the other parent's attorney fees and costs.27
The trial court here ordered Baicy to pay Shay's attorney fees and costs for
Cassady's work as her attorney.
Baicy does not contest that the statute requires, upon a finding of contempt, that
the trial court order the parent in contempt to pay attorney fees and costs. He instead
asserts that Washington courts should recognize an exception to this rule restricting
attorney fees when the attorney providing the legal services is in an intimate relationship
with the party.
Baicy's legal argument lacks merit. Baicy relies on two cases interpreting federal
law. In one, the United States Supreme Court held that a statute that allows attorneys
enforcing civil rights statutes to recover attorney fees does not allow pro se litigants who
26 RCW 26.09.160(2)(b).
27RCW26.09.160(2)(b)(ii).
-9-
No. 74221-3-1/10
are attorneys to recover fees.28 In the other, the Fourth Circuit applied the judicially
created "special circumstances" doctrine and held that the Individuals with Disabilities
Education Act (IDEA)29 does not allow parents of a disabled child to recover attorney fees
for representing their child in IDEA proceedings.30
These federal cases do not support Baicy's broad proposition that Washington
courts should prohibit attorney fees when the attorney represents "a person with whom
the attorney bears a close relation." The Fourth Circuit noted that "[c]ourts have
universally recognized that this 'special circumstances' exception is very 'narrowly
limited.'"31 We see no reason to adopt and apply that narrow rule to this case in the broad
manner Baicy promotes. Nothing in the statutory scheme or Washington case law
supports this result. The trial court thus did not abuse its discretion in awarding Shay
attorney fees and costs.
Appellate Fees under RAP 18.9
Shay asks for sanctions for having to respond to a frivolous appeal. An appeal is
frivolous "if the appellate court is convinced that the appeal presents no debatable issues
upon which reasonable minds could differ and is so lacking in merit that there is no
possibility of reversal."32 We consider the record as a whole and resolve all doubts
against finding an appeal frivolous.33
28 Kav v. Ehrler, 499 U.S. 432, 111 S. Ct. 1435, 113 L. Ed. 2d 486 (1991)
(interpreting 42 U.S.C. § 1988).
2920U.S.C. §§ 1400-1487.
30 Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260 (4th Cir. 1998).
31 Doev.Bd.ofEduc, 165 F.3d at 264.
32 In re Marriage of Foley. 84 Wn. App. 839, 847, 930 P.2d 929 (1997).
33 Delanvv. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (1997).
-10-
No. 74221-3-1/11
Applying this standard, we deny Shay's request for sanctions. While we reject
Baicy's arguments, he presents a debatable argument for extending a narrow principle of
federal law to overturn the attorney fees award.
Conclusion
The trial court correctly interpreted the parenting plan and thus did not abuse its
discretion in finding Baicy in contempt of that plan. Because substantial evidence
supported the trial court's factual conclusions about Baicy's ability to pay, the trial court
also did not abuse its discretion in finding him in contempt of the child support order.
Baicy's remaining arguments also lack merit. We affirm.
EL
WE CONCUR:
\ /\c/U,* y n o^ *"V*
-11-