Gavin Fazio v. Brittany Stepper ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
January 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
GAVIN FAZIO, No. 52109-1-II
Respondent,
v.
BRITTANY STEPPER, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Following the dissolution of their marriage, Gavin Fazio and Brittany
Stepper were subject to a final child support order. One year later, Stepper filed a motion for
contempt, alleging Fazio violated the order. The trial court denied Stepper’s motion, found that
Stepper had brought the motion in bad faith, and awarded Fazio his attorney fees.
On appeal, Stepper argues that trial court erred when it (1) found there was insufficient
evidence to hold Fazio in contempt; (2) found, without explanation, that Stepper had brought the
contempt motion in bad faith; and (3) awarded Fazio his attorney fees.
Because sufficient evidence supports the trial court’s findings of fact, we hold that the trial
court did not err. Thus, we affirm.
FACTS
I. ORDERS AND CONFERENCE BOARD HEARING
A trial court dissolved the marriage of Fazio and Stepper in 2017. In addition to the
dissolution decree, the trial court entered a final child support order regarding the parties’ two
minor children. The final child support order stated that Fazio could claim one child on his
No. 52109-1-II
taxes, provided that Fazio was current in the payment of his child support, uninsured medical
expenses, and daycare expenses by December 31 of the tax year at issue.
A. Child Support
Fazio began making child support payments under a temporary order filed in April 2016.
Under the temporary order, Fazio paid Stepper directly using three methods: check, Kitsap
Credit Union transfers, and Kitsap MoneyGram money orders. After the final child support
order was filed, Fazio began paying Stepper through the State of Washington Division of Child
Support (DCS).
At some point after the dissolution finalized, DCS examined Fazio’s history of payments
that he made directly to Stepper and determined that Fazio was behind on his child support
obligation. Fazio requested a conference board hearing arguing that he had made certain
payments directly to Stepper.1 Stepper agreed that these payments had been made, and DCS
credited Fazio with these payments. Nonetheless, DCS calculated that Fazio remained in arrears.
B. Medical Expenses
The final child support order stated that each parent must provide the other parent with
written documentation of the medical expenses within 30 days of that expense being incurred.
The other parent must pay his or her proportionate share of that expense within 30 days of
1
“A conference board is an informal review of case actions and of the circumstances of the
parties and children related to a child support case.” WAC 388-14A-6400(1). “A conference
board is not a formal hearing under the Administrative Procedure Act, chapter 34.05 RCW,” and
“does not replace any formal hearing right created by chapters 388-14A WAC, or by chapters
26.23, 74.20 or 74.20A RCW.” WAC 388-14A-6400(4), (5).
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No. 52109-1-II
receipt of the documentation of the expense. The final child support order stated that each parent
will make payments directly to the service provider, not the parent who paid the expense.
C. Preschool Expenses
The final child support order also addressed the parties’ obligations for daycare expenses.
The final child support order stated that each parent must provide the other parent with written
documentation of daycare expenses within 30 days of that expense being incurred, and the other
parent must pay the service provider his or her share of that expense within 30 days of receipt of
written documentation. In a subsequent agreed order clarifying the final child support order,
Fazio and Stepper each agreed to pay one-half of preschool expenses. This subsequent order did
not specify the procedure for notification of preschool expenses or payment of preschool
expenses.
II. MOTION FOR CONTEMPT AND CONTEMPT RULING
In 2018, Stepper filed a motion for contempt, alleging that Fazio had violated the final
child support order by claiming a child on his taxes despite being delinquent in his payments of
child support, uninsured medical expenses, and preschool expenses. In support of her motion,
Stepper attached her declaration. Fazio responded to the motion, attaching his own declaration.
A. Child Support
In support of her argument that Fazio was delinquent on his child support payments,
Stepper submitted a DCS debt calculation sheet showing that Fazio was delinquent. Stepper
relied on the DCS calculation that, after the conference board hearing recalculation, Fazio owed
$1,961.57 in December 2017. Stepper claimed that he failed to pay this amount before the end
of that year. The only documents Stepper submitted to support her argument that Fazio was
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No. 52109-1-II
delinquent in child support were the DCS debt calculation worksheet and the DCS conference
board decision explaining adjustments to Fazio’s child support balance. At the time of the
contempt hearing, Fazio continued to challenge DCS’s calculation and, as a result, the DCS
matter remained under review.
In his declaration, Fazio claimed that he was current on his child support obligation. He
demonstrated this by explaining every direct payment he made to Stepper, referencing a receipt,
check, or bank statement associated with each payment, and submitting receipts of check and
money order payments Fazio made to Stepper, Fazio’s bank statements showing the withdrawals
or transfers, and Stepper’s bank statements showing the deposits. Fazio also submitted an e-mail
from MoneyGram confirming that all of Fazio’s money orders were cashed. Additionally, Fazio
stated that Stepper made false claims and misrepresentations to DCS about his payments to her.
B. Medical Expenses
Stepper claimed that Fazio owed her $101.98 for past due medical expenses. Stepper
stated that a child’s medical visit in July 2017 produced two separate bills, one from CHI
Franciscan Health and one from West Sound Emergency Physicians. Stepper stated that the bill
from West Sound Emergency Physicians was sent to collections in December 2017 and that she
was unaware of this bill until that time. Stepper then paid the West Sound Emergency
Physicians bill in full on December 2, 2017. On December 2, 2017, Stepper told Fazio about this
bill and asked for reimbursement. Fazio incorrectly sent payment for the West Sound
Emergency Physicians bill to CHI Franciscan Health. Because a child received subsequent
treatment from CHI Franciscan Health in October 2017, Fazio’s payment was credited to that
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No. 52109-1-II
balance. Stepper stated that Fazio still owed his share for medical expenses based on the West
Sound Emergency Physicians bill she provided to him in December 2017.
Fazio stated that Stepper contacted him on December 2, 2017 regarding a child’s
emergency visit from July. Fazio asked for a copy of the bill, which Stepper eventually provided
on December 14. Fazio paid his portion of the expense, $136.83, directly to CHI Franciscan
Health.
C. Preschool Expenses
In her motion, Stepper argued that Fazio owed preschool expenses from 2017, totaling
$318.00. Stepper provided a “Statement of Account” from the preschool, detailing the
registration and tuition payments. Clerk’s Papers (C) at 36. This statement showed Stepper paid
half of the balance due for tuition each month, and showed a remaining balance for tuition and
registration charges from 2017 of $318.00. Stepper stated that the final child support order
required Fazio to pay his share of these expenses to the service provider. Stepper stated that the
preschool billing statement was placed in the child’s “take-home bucket” for Fazio.
Fazio stated that the preschool listed Stepper as the custodial parent, and that the
preschool would not give Fazio information directly without Stepper’s permission. Fazio stated
Stepper did not give this permission. Fazio stated that Stepper never provided him with a
preschool expenses bill and that he never received a bill through the child’s take-home bucket.
He stated he also asked Stepper to provide him with information regarding the preschool
expenses because she previously told him tuition was $150.00 per month, but a teacher at the
preschool stated $115.00 per month. Stepper refused to provide this expense information.
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No. 52109-1-II
D. Ruling on the Motion for Contempt
Following the contempt hearing, the trial court issued a letter opinion, finding that there
was insufficient evidence to hold Fazio in contempt, and inviting Fazio to submit a request for
attorney fees, which he did. The trial court ruled that Fazio was not in contempt. The trial court
issued a contempt hearing order which contained findings that stated, “Insufficient evidence has
been presented of past due support,” and “Stepper acted in bad faith in bringing the proceeding
before the Court without substantive evidence of a violation of the support order.” CP at 130.
The trial court awarded Fazio’s counsel her attorney fees under RCW 26.18.160.
Stepper appeals the contempt hearing order.
ANALYSIS
I. ORDER DENYING CONTEMPT
Stepper argues that the trial court erred when it found that she presented insufficient
evidence of past due support and ruled that Fazio was not in contempt. Stepper also argues that
the trial court erred by finding, “without explanation,” that she acted in bad faith. Br. of
Appellant at 17. We hold that the trial court did not abuse its discretion when it denied Stepper’s
motion based on insufficient evidence. Further, we hold that the trial court’s finding that Stepper
acted in bad faith is supported by substantial evidence.
“Contempt of court” is the intentional disobedience of a lawful court order. RCW
7.21.010(1)(b). We review a trial court’s decision in a contempt proceeding for an abuse of
discretion. In re Marriage of Williams, 156 Wash. App. 22, 27, 232 P.3d 573 (2010). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds
or untenable reasons. In re Marriage of Katare, 175 Wash. 2d 23, 35, 283 P.3d 546 (2012). A trial
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No. 52109-1-II
court’s decision is based on untenable grounds if the trial court’s factual findings are not
supported by the record. In re Matter of L.H., 198 Wash. App. 190, 194, 391 P.3d 490 (2016). As
long as the trial court’s findings of fact are supported by substantial evidence, they will not be
disturbed on appeal. In re Marriage of Rockwell, 141 Wash. App. 235, 242, 170 P.3d 572 (2007).
Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the
truth of the declared premise. In re Marriage of Burrill, 113 Wash. App. 863, 868, 56 P.3d 993
(2002).
When a parent does not make court-ordered child support payments or refuses to comply
with a parenting plan, the other parent may initiate contempt proceedings to enforce compliance
with the court’s order. RCW 26.18.050. The moving party has the burden to prove contempt by
a preponderance of the evidence. In re Marriage of James, 79 Wash. App. 436, 442, 903 P.2d 470
(1995). “This showing must include evidence from which the trial court can find that the
offending party has acted in bad faith or engaged in intentional misconduct.” Marriage of
James, 79 Wash. App. at 442. In a contempt case, a trial court balances competing evidence,
resolves conflicts, and weighs credibility. In re Marriage of Rideout, 150 Wash. 2d 337, 350-51,
77 P.3d 1174 (2003). We do not reweigh conflicting evidence or substitute our own judgment
for that of the trial court. Marriage of Rockwell, 141 Wash. App. at 242.
A. Stepper’s Insufficient Evidence of Contempt
The trial court concluded that insufficient evidence supported Stepper’s motion for
contempt. We hold that the trial court did not abuse its discretion when it determined that
insufficient evidence supported her motion.
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Regarding child support, Stepper argues that she presented sufficient evidence that Fazio
was delinquent in his payments. Stepper argues that because DCS determined that Fazio was
behind in his payments based on DCS’s review of the evidence, she has presented sufficient
evidence to find Fazio in contempt. Additionally, she argues that Fazio did not present evidence
to DCS to support that he was entitled to additional credits for previous payments. However,
Stepper does not cite any authority to support that either the trial court or this court is bound by
the DCS conference board decision.
Fazio submitted documentary evidence of every payment he made to Stepper from April
2016 through the end of 2017. Fazio referenced each receipt, check, or bank statement. He
showed his withdrawals and Stepper’s deposits. The trial court balanced competing evidence
and concluded that Stepper had not met her burden to show contempt. The trial court did not
abuse its discretion when it determined that Stepper did not provide sufficient evidence of
contempt regarding child support payments.
Regarding uninsured medical expenses, Stepper argues that Fazio was in violation of the
final child support order based on the West Sound Emergency Physicians bill. The final child
support order requires each parent to provide the other parent with written documentation of the
medical expenses within 30 days of that expense being incurred. The other parent then has 30
days to pay his or her proportionate share of that expense. The final child support order states
that each parent will make payments directly to the service provider, not the parent who pays the
expense.
Stepper paid the West Sound Emergency Physicians bill in full on December 2, 2017.
On December 2, 2017, Stepper told Fazio about this bill and asked for reimbursement. Stepper
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No. 52109-1-II
did not follow the final child support order’s process for paying these expenses. Moreover,
Stepper provided the expense to Fazio on December 2, giving Fazio until January 1 to provide
payment to the treatment provider. Fazio could not have been delinquent on December 31, 2017,
(the date by which he was required to be current in his obligations to claim the exemption)
because the 30 days to pay had not passed from Stepper’s documentation of the expense. The
trial court did not abuse its discretion when determining that Stepper did not provide sufficient
evidence of contempt regarding uninsured medical expenses.
Regarding preschool expenses, Stepper argues that Fazio did not pay registration and
tuition costs and that Fazio provided no proof of payment for these expenses. Fazio stated that
he had never seen billing statements for preschool expenses and Stepper refused to provide
billing statements from the preschool. Fazio further stated that Stepper prevented him from
accessing the preschool expenses. The trial court considered the parties’ competing statements
and determined that Stepper had not met her burden to show contempt regarding the preschool
expenses. We do not reweigh competing evidence. Marriage of Rockwell, 141 Wash. App. at 242.
The trial court did not abuse its discretion regarding the preschool expenses. Accordingly, we
hold that the evidence presented supports the trial court’s determination that Stepper presented
insufficient evidence of past due support.
B. Stepper’s Bad Faith
Stepper argues that the trial court erred when it found “without explanation” that she
acted in bad faith, thus entitling Fazio to attorney fees under RCW 26.18.160. We hold that
substantial evidence supports the bad faith finding.
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No. 52109-1-II
As an initial matter, Stepper appears to argue that the trial court was required to
thoroughly explain its reasoning in making its bad faith finding. She cites no cases for this
proposition. As stated above, as long as the trial court’s findings of fact are supported by
substantial evidence, we will not disturb those findings on appeal. Marriage of Rockwell, 141
Wash. App. at 242. Thus, we review the trial court’s bad faith finding for substantial evidence.
RCW 26.18.160 provides an award of attorney fees for the prevailing party in an action
to enforce a support order. The obligor parent may not be considered the prevailing party unless
the obligee parent acted in bad faith regarding the proceeding at issue. RCW 26.18.160. In
equity, bad faith occurs when a party intentionally brings a claim with improper motive or
purpose. Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wash. App. 918, 929, 982 P.2d 131
(1999).
Here, a sufficient quantum of evidence exists to persuade a fair-minded person that
Stepper acted in bad faith. Fazio’s declaration detailed how Stepper sought enforcement of child
support through DCS. Fazio stated that Stepper did not accurately report his past payments, and
relying on Stepper’s reporting, DCS made findings that Fazio was delinquent in his payments.
Fazio argued that Stepper relied solely on the DCS findings, based on Stepper’s inaccurate
information, to bring the motion for contempt. Further, Fazio stated that Stepper did not allow
Fazio access to preschool expenses, and then brought the contempt motion based on a failure to
pay these expenses. Further, Stepper’s motion sought compensation for the alleged missed
payments.
Stepper brought a motion for contempt with the motive of compensation for payments
that were not delinquent. Her allegations of missed payments were based on misinformation she
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No. 52109-1-II
provided to DCS and her own actions preventing Fazio’s access to the preschool expenses.
Substantial evidence supports the trial court finding that Stepper acted in bad faith. We hold that
the trial court did not abuse its discretion when it found that Stepper acted in bad faith.
II. TRIAL COURT ATTORNEY FEES
Stepper argues that because the trial court erred when finding she acted in bad faith,
Fazio was not entitled to his attorney fees. Because substantial evidence supports the trial
court’s finding of bad faith, we hold that Fazio was entitled to his attorney fees at the trial court.
Fazio requested an award of attorney fees under RCW 26.18.160. That statute states:
In 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. An obligor may not be considered a prevailing party under this
section unless the obligee has acted in bad faith in connection with the proceeding
in question.
RCW 26.18.160. An attorney fee award for the prevailing party under RCW 26.18.160 is
mandatory. In re Marriage of Nelson, 62 Wash. App. 515, 520, 814 P.2d 1208 (1991). Whether a
legal basis exists for attorney fees is a question of law that we review de novo. In re Marriage of
Wixom, 190 Wash. App. 719, 728, 360 P.3d 960 (2015).
Here, Fazio, the obligor, prevailed in the contempt proceeding. The trial court’s finding
that Stepper, the obligee, acted in bad faith is supported by substantial evidence. Because Fazio
is a prevailing party under RCW 26.18.160, we hold that the trial court did not err when
awarding his attorney fees.
III. ATTORNEY FEES ON APPEAL
Both parties request attorney fees on appeal. Stepper requests attorney fees based on
RAP 18.1, RCW 26.18.160, and RCW 26.09.140. Fazio requests attorney fees based on RCW
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No. 52109-1-II
26.18.160 and sanctions based on RAP 18.9(a). We deny both parties’ requests for attorney fees
and Fazio’s request for sanctions.
RAP 18.1 allows this court to grant a party reasonable attorney fees or expenses if an
applicable statute permits. RCW 26.18.160 mandates an award of attorney fees for the
prevailing party in an action to enforce a support order. The obligor parent may not be
considered the prevailing party unless the obligee parent acted in bad faith regarding the
proceeding at issue. RCW 26.18.160. RCW 26.18.160 includes an action on appeal. Rhinevault
v. Rhinevault, 91 Wash. App. 688, 696, 959 P.2d 687 (1998). Separately, RCW 26.09.140 permits
a court to order a party to pay a reasonable amount for the cost to the other party of maintaining
or defending a proceeding related to the enforcement of a child support order, after considering
the financial resources of both parties. Additionally, RAP 18.9 allows this court to impose
compensatory damages or sanctions against a party filing a frivolous appeal. An appeal is
frivolous if “there are no debatable issues over which reasonable minds could differ and there is
so little merit that the chance of reversal is slim.” Kearney v. Kearney, 95 Wash. App. 405, 416,
974 P.2d 872 (1999).
Regarding Stepper’s request for attorney fees, because she is not the prevailing party on
appeal, we do not award attorney fees based on RCW 26.18.160. Separately, Stepper requests
attorney fees based on RCW 26.09.140. However, RAP 18.1(c) requires Stepper to file a
financial affidavit with this court before our consideration of this case. Stepper failed to do so.
We deny Stepper’s request for attorney fees under RCW 26.09.140.
Regarding Fazio’s request for attorney fees, we hold that Stepper did not bring her appeal
in bad faith or frivolously. Here, based on the sparse language of the contempt order regarding
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bad faith, whether the bad faith finding was supported by substantial evidence is a debatable
issue over which reasonable minds could differ. Because Stepper’s appeal is neither frivolous
nor brought in bad faith, we do not award Fazio his attorney fees nor grant his request for
sanctions.
We affirm.
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, J.
We concur:
Lee, A.C.J.
Cruser, J.
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