IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Marriage of ) ) No. 66510-3-I KENNETH KAPLAN, ) ) DIVISION ONE Respondent, ) ) and ) UNPUBLISHED OPINION ) SHEILA KOHLS, ) FILED: February 13, 2012 ) Appellant. ) ) Becker, J. -- Sheila Kohls appeals two orders of the trial court finding her in contempt for violating a parenting plan and a child support order. She also appeals the trial court s order refusing to enforce the child support order against her former husband, Kenneth Kaplan. Because Kohls fails to demonstrate any abuse of discretion in the orders before this court on review, we affirm and award fees to Kaplan for this appeal. Facts Kohls and Kaplan were married in 1992. They have two children, a son and a daughter. The court dissolved their marriage in 2005. The parenting plan designated Kohls the primary residential parent. The plan provided for joint

No. 66510-3-I/2 decision making on major decisions, including non-emergency health care. The order on child support required Kaplan to make regular child support payments to Kohls. It required Kohls to share certain costs, including day care, counseling, and educational expenses to the extent Kaplan proved he had no funds for this purpose paid for by the children s paternal grandfather. Soon after the dissolution, a dispute arose between Kohls and Kaplan concerning the appropriate course of evaluation and care for their daughter, whom a teacher suspected suffered from attention deficit disorder. The parties involved their attorneys in the dispute. They began a series of litigation proceedings now spanning seven years, including motions before arbitrators, court commissioners, and superior court judges. There have been two reviews by this court. Central to the conflict was Kohls wish to modify the parenting plan to obtain sole decision making authority over decisions affecting the children s health care. In her first appeal, Kohls argued successfully that her motion to modify was entitled to a hearing. In re Marriage of Kaplan, noted at 144 Wn. App. 1015 (2008). On remand, the superior court held a four-day hearing on Kohls motion to modify the parenting plan. Both parties testified, as well as two expert witnesses. Over 300 exhibits were considered. The court issued a 12-page memorandum decision in June 2009, concluding there were no grounds for modifying the parenting plan. The court found that Kohls had lied about certain matters and that her testimony was often histrionic and exaggerated and 2

No. 66510-3-I/3 suffered from an overall lack of credibility. The court concluded that Kohls had intentionally violated the parenting plan s joint decision making requirement when she selected a health care provider for their daughter. When Kohls appealed the superior court s denial of her motion to modify the plan, this court affirmed the superior court s ruling. In re Marriage of Kaplan, noted at 158 Wn. App. 1021 (2010), review denied, 171 Wn.2d 1004 (2011). While the second appeal was pending, the parties were litigating in the trial court the new matters which gave rise to the present appeal. In May 2010, Kaplan moved for a finding of contempt and to enforce an arbitration decision requiring the parties to communicate by e-mail. He argued Kohls was in contempt of the parenting plan s joint decision making provision because she continually failed to notify him of medical appointments for the children. He also argued she was in contempt of the child support order because she refused to pay her agreed share of the children s school book expenses. The day after Kaplan filed his motion for contempt, Kohls filed a motion to enforce the child support order against Kaplan. She contended that he had failed to pay medical bills to Children s University Medical Group, the medical group had written off the bills as bad debt, and the situation was likely to endanger the children s ability to continue to receive services there. A commissioner heard both motions and ruled in favor of Kohls. The superior court extensively revised the commissioner s ruling. The court found Kohls in contempt of the parenting plan for failing to notify Kaplan of 3

No. 66510-3-I/4 medical appointments. According to the findings, the commissioner misapprehended the core significance of this particular problem for these parents and the children. The court dismissed Kohls argument that the medical appointments in question were routine, quoting Kohls own statements that her son suffered from life-threatening and serious medical conditions. The court also rejected as false Kohls statements that Kaplan had not been involved in the children s medical care, calling her statements another manifestation of her determination that Kaplan must engage parenting her way. It is bad faith. The superior court did not discuss Kaplan s motion for contempt regarding the educational cost-sharing issue. Kaplan filed a motion for reconsideration and clarification. He requested that the court address the means by which Kohls should purge her contempt, including requirements that she (1) consult with Kaplan before scheduling medical appointments for the children; (2) have e-mail access in her home and check her e-mail daily; and (3) pay attorney fees for Kaplan s litigation of his successful motion. He asked the court to clarify that he was not responsible for paying fees for doctor visits for which he was not given notice. Kaplan also asked the court to reconsider the commissioner s award of over $2,900.00 in attorney fees to Kohls as well as the order requiring Kaplan to pay a sum to the medical group. In an order issued November 19, 2010, the superior court granted each of Kaplan s requests. After reviewing the invoice from the medical group showing a 4

No. 66510-3-I/5 zero balance owing, the court vacated its previous ruling upholding Kohls motion to enforce and found Kohls in contempt of the order on child support for failing to pay her agreed 28 percent share of the children s educational expenses. Kohls was ordered to pay $188.63 to Kaplan for her share of the children s school book expenses. The court awarded Kaplan $13,435.33 in attorney fees for costs related to the contempt proceedings. This appeal followed. CONTEMPT This court reviews a trial court s decision in a contempt proceeding for an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995). A trial court s challenged factual findings regarding contempt will be upheld on appeal if they are supported by substantial evidence. In re Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.3d 1174 (2003). We do not weigh conflicting evidence or substitute our judgment for that of the trial court. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 Wn.2d 1030, 1031 (1996). Unchallenged factual findings are verities on appeal. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). Contempt of court is defined in part as intentional disobedience of a lawful court order. In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995), citing RCW 7.21.010(1). In the context of dissolution and parental support, contempt is governed by RCW 26.09.160. Under that statute, a court shall find a party in contempt based on a written finding, after a hearing, that the parent, in bad faith, has not complied 5

No. 66510-3-I/6 with the order establishing residential provisions for the child. RCW 26.09.160(2)(b); see James, 79 Wn. App. at 440. The party moving for contempt has the burden of proving contempt by a preponderance of the evidence, by providing evidence that the offending party acted in bad faith or engaged in intentional misconduct or that prior sanctions have not secured compliance with the plan. James, 79 Wn. App. at 442. declaration: Contempt With Respect to Medical Appointments Kaplan thoroughly documented his motion for contempt. He explained by Both of our children have been diagnosed with and medicated for ADD in the past, and Sheila and I have different perspectives on how that issue should be addressed. It is imperative that both of us be involved in meeting with the doctors, hearing their thoughts, and sharing our own. Sheila refuses to accept this, and even after Judge Doerty s ruling where he noted numerous instances of her violation of joint decision making, continues to make appointments for the children without consulting or notifying me. Kaplan complained of four specific occasions when Kohls took the children to medical appointments without notifying him of the appointments. The court made a specific finding of Kohls bad faith and concluded that she was in contempt with respect to notification of medical appointments. A finding of contempt will be upheld if the appellate court can find any proper basis for the finding. Trummel v. Mitchell, 156 Wn.2d 653, 672, 131 P.3d 305 (2006). In reviewing a contempt finding, we look for facts constituting a plain order violation and strictly construe the order. Humphreys, 79 Wn. App. at 599. The court did not abuse its 6

No. 66510-3-I/7 discretion in finding Kohls in contempt with respect to notification of medical appointments. The parenting plan (Section 4.2) plainly lists non-emergency health care as a category of Major Decisions for which decision making is to be Joint. Kohls does not dispute that she failed to notify Kaplan of the medical appointments in question. Her failure to involve Kaplan in making decisions concerning the appointments was a plain violation of the joint decision making provision. It provided tenable grounds for the finding of contempt. Humphreys, 79 Wn. App. at 599. The court s order also met the requirement of entering a specific finding of bad faith. Kohls arguments on appeal are unpersuasive. Her first argument is that the parenting plan imposes no requirement that she involve Kaplan in routine medical appointments during which no major decisions take place. But the plan contains no carve-out for routine appointments, or for nonemergency appointments during which only minor decisions are made or anticipated. All decisions concerning nonemergency health care are deemed major decisions in this parenting plan. This interpretation is consistent with the parties years of costly litigation, including three appeals to this court, based on their disagreements over how the children s nonemergency medical conditions should be evaluated and treated. The commissioner s conclusion that notice was not required under the plan for routine appointments is not determinative. This court reviews decisions of the superior court judge, not the commissioner. RCW 2.24.050. 7

No. 66510-3-I/8 Kohls second argument is that the parenting plan contains no provision expressly requiring her to give Kaplan advance notice of medical appointments. But under any meaningful definition of joint decision making, advance notice to all participants must be required. Without advance notice of a medical appointment, Kaplan s ability to participate in decisions concerning the appointment would be nullified. Third, Kohls argues her unilateral action was permissible with regard to one of the appointments because it involved an emergency, as her son s headaches were increasing in severity. This theory of emergency is notably at odds with her description of the appointment, however: Certainly no major decision was made at the pediatrician s office. The doctor did not diagnose the problem or prescribe any course of treatment. Rather, the doctor merely referred [our son] for a CT scan in order to determine what treatment decisions should be made. Brief of Appellant at 34. The emergency theory also fails to address the other three appointments the superior court considered in finding Kohls in contempt with respect to notification of medical appointments. Kohls contends the superior court s finding of bad faith was insufficient to support its finding of contempt, because the court was referring to statements she made during litigation, after the events in question. The trial court makes determinations regarding bad faith after balancing competing testimony and documentary evidence and weighing credibility. James, 79 Wn. App. at 442; see also Rideout, 150 Wn.2d at 351-52. The superior court did not limit its 8

No. 66510-3-I/9 finding of bad faith to Kohls statements made in court; rather, her statements in court were another manifestation of the bad faith reflected in her efforts to thwart joint decision making. Moreover, the court was entitled to consider Kohls statements made in court in support of its overall credibility determination. See James, 79 Wn. App. at 442. Contempt with Respect to School Books Section 3.15 of the child support order in effect at the time of the contempt proceedings required Kohls to participate in cost-sharing for educational expenses. The order conditioned her obligation to pay 28 percent of educational expenses to the extent [Kaplan] proves he has no funds for this purpose paid by his father. The court found Kohls in contempt for refusing to pay her 28 percent share of the children s school book expenses. Kohls argues that the superior court abused its discretion because her obligation to share these costs was never triggered. She implies in her brief on appeal that Kaplan should have been required to prove that an educational trust set up by the grandfather did not cover the expenses. The child support order imposed no such requirement on Kaplan. Kaplan explained to the superior court that his father had passed away, and he had been paying the educational expenses himself for several years. Among the evidence he provided to the court was a photocopied tuition check made out from his personal account in 2009. This court cannot reweigh the evidence on appeal. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002), review denied, 149 Wn.2d 1007 (2003). Substantial evidence 9

No. 66510-3-I/10 supported the superior court s finding that Kaplan no longer possessed funds from his father for the children s educational costs. Accordingly, the court did not err in finding that Kohls was responsible. Her refusal to contribute her proportional share toward the children s school books a clear educational expense was a plain violation of the order presently in effect. Humphreys, 79 Wn. App. at 599. Kohls argued that she reasonably believed the cost-sharing provision of the child support order was superseded by Kaplan s later statement during arbitration that he was willing to pay the entire cost of private school. Whether Kaplan made statements during arbitration excusing her failure to pay was a question of fact for the trial judge. Kaplan said he agreed to pay the entire cost of private school tuition only. His version was supported by the child support order in effect at the time of the alleged contempt, which set up a distinction between educational expenses and tuition. Educational expenses were listed among the set of costs subject to the 72/28 percent cost sharing. A statement below this provision provided that tuition at the Seattle Jewish Community School would be determined by arbitration with Larry Besk. The superior court heard both parties arguments and evidence on this matter. The court accepted Kaplan s position, finding that his agreement to pay private school tuition does not act as a modification absolving Ms. Kohls of responsibility for all other educational expenses. This court does not reweigh the evidence on appeal. Burrill, 113 Wn. App. at 868. We find no abuse of 10

No. 66510-3-I/11 discretion in this determination. Contempt Sanctions If the trial court finds, after conducting a hearing on contempt, that a person has failed or refused to perform an act that is yet within the person s power to perform, the court may find the person in contempt of court and impose sanctions, including an order designed to ensure compliance with a prior order of the court. RCW 7.21.030(2)(c). A contempt sanction is within the sound discretion of the trial court, and will not be disturbed on appeal absent a showing of an abuse of discretion. Humphreys, 79 Wn. App. at 599. Civil contempt sanctions must be (1) designed to serve remedial aims, i.e., they must be directed at obtaining future compliance ; (2) within the power of the contemnor to fulfill; and (3) reasonably related to the cause or nature of the contempt. In re Interest of M.B., 101 Wn. App. 425, 450, 3 P.3d 780 (2000), review denied, 142 Wn.2d 1027 (2001). In order to purge the contempt, the court required Kohls to (1) consult and coordinate with Kaplan concerning all medical appointments for the children; (2) have e-mail access in her home and check her e-mails daily to facilitate this communication; and (3) pay all uninsured charges, including copays, for any medical expenses incurred (past or future) for visits that Mr. Kaplan did not receive notice of. Kohls disputes the first and third sanctions. She argues they were improper because the contempt order included no purge clause permitting her to avoid the finding of contempt and the 11

No. 66510-3-I/12 concomitant sanctions. For the proposition that a purge clause is mandatory, she relies on language in In re Marriage of Didier, 134 Wn. App. 490, 500-01, 140 P.3d 607 (2006) (quoting In re Interest of Rebecca K., 101 Wn. App. 309, 314, 2 P.3d 501 (2000)), review denied, 160 Wn.2d 1012 (2007). Both Didier and Rebecca K. discussed purge clauses in the context of actual or threatened incarceration and therefore have no application here. Kohls also argues that as a first-time contemnor, she should have been permitted to escape sanctions by promising to comply in the future. We disagree. As this court has previously explained: A contemnor s promise of compliance is the first step. But where that promise is demonstrably unreliable, the court can insist on more than mere words of promise as a means of purging contempt. To conclude otherwise would render the statutes unenforceable and reduce the court to the level of beggar. M.B., 101 Wn. App. at 448. In M.B. we noted specifically that a court may reject as unreliable a contemnor s promise to comply, even on a first contempt. M.B., 101 Wn. App. at 450. The first sanction, regarding notification of medical appointments, was clearly proper; it simply required Kohls to comply with the existing requirements of the parenting plan. Her promises to comply in future were demonstrably unreliable. M.B., 101 Wn. App. at 448. The superior court was familiar with the history of this dispute, having concluded after the four-day hearing in 2009 that Kohls had intentionally violated the joint decision making provision with respect to the children s health care. 12

No. 66510-3-I/13 The other disputed sanction required Kohls to pay all uninsured charges, including copays, for any medical expenses incurred (past or future) for visits that Mr. Kaplan did not receive notice of. This too was appropriately remedial and reasonably related to the cause or nature of her contempt. M.B., 101 Wn. App. at 450. Kohls argues that the application of this sanction to past appointments is punitive and therefore exceeds the court s civil contempt authority. It is true that civil contempt sanctions must be directed at obtaining future compliance. M.B., 101 Wn. App. at 450. Leaving Kohls with the responsibility for otherwise uninsured costs she incurred unilaterally in violation of the parenting plan serves that purpose. MOTION TO ENFORCE ON BEHALF OF A THIRD PARTY A trial court s decision regarding enforcement, like contempt, is reviewed for an abuse of discretion. State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973 P.2d 1062 (1999). We conclude the superior court did not abuse its discretion in refusing to enforce the child support order against Kaplan on behalf of the third party medical group. The evidence before the superior court showed a zero balance owing. Despite Kohls evidence that some portion of previous bills had been written off as bad debt, she provided no evidence that the children s continued care was endangered by Kaplan s past failure to pay the bill. Rather, the invoice evidence suggested that Kohls herself had requested to have the written off portion of debt revived the day before she submitted her motion. The superior court and the commissioner both perceived that Kohls motive was retaliation. The court 13

No. 66510-3-I/14 reasonably concluded that Kohls stated concerns were both speculative and disingenuously brought to the court s attention and that they did not warrant court action. Kohls complains that by failing to pay a medical bill because he disputed the care the children received there, Kaplan was conditioning payment of child support on the parenting plan s joint decision making provision, in violation of RCW 26.09.160(1). This argument is misplaced. The statute provides that such behavior may be punishable by contempt. But Kohls did not move for contempt, and as a result, there is no ruling before us for review. Kohls contends the court erred by considering supplemental evidence submitted by Kaplan with his motion for revision. A motion for revision must be decided on the basis of the factual record before the commissioner. In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). The record reflects that the court based its denial of Kohls motion in part on evidence submitted by Kohls in connection with Kaplan s motion for reconsideration in the superior court. 1 Under the doctrine of invited error, a party may not complain on appeal about an error that she affirmatively participated in creating. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) ( This court will deem an error waived if the party asserting such error materially contributed thereto. ). Because Kohls herself invited the court to consider evidence that was not part of 1 See Clerk s Papers at 379. 14

No. 66510-3-I/15 the record before the commissioner, we deem this claim of error to be waived. Attorney Fees For Contempt Proceedings Kohls contends the court abused its discretion by awarding an excessive amount of attorney fees. Upon a finding of contempt in the parental support context, a court shall order the parent in contempt to pay to the moving party all court costs and reasonable attorneys fees incurred as a result of the noncompliance. RCW 26.09.160(2)(b)(ii). An order of fees under this section is mandatory. In re Marriage of Eklund, 143 Wn. App. 207, 215, 218, 177 P.3d 189 (2008). The amount of attorney fees awarded is within the trial court s discretion and must relate to the costs associated with the current contempt proceeding. Eklund, 143 Wn. App. at 218. Here, the court awarded Kaplan $13,435.33 in fees to cover filing and arguing his motions for contempt, revision, and reconsideration, and for responding to Kohls withdrawn motions for reconsideration and change of judge. This was a lengthy series of actions undertaken in the course of the contempt proceedings. The fees awarded to Kaplan were reasonable. The superior court s award of fees to Kaplan also included fees to cover his response to Kohls retaliatory motion to enforce. Kaplan was entitled to fees for this purpose. RCW 26.18.160 provides for mandatory attorney fees to the prevailing party in an action to enforce a child support order, where the losing party acted in bad faith in connection with the proceeding. RCW 26.18.160. Substantial evidence including invoice evidence showing Kohls requested to have the medical group s 15

No. 66510-3-I/16 bills revived against Kaplan just before bringing her motion to enforce supports the court s conclusion that Kohls motive was retaliatory. Reviving settled bills and filing a motion in retaliation can reasonably be deemed actions taken in bad faith. We conclude the award of fees to Kaplan was not an abuse of discretion. Attorney Fees on Appeal Both parties request attorney fees and costs for this appeal. Kohls requests fees under RCW 26.09.140, which permits an award of fees in consideration of the financial resources of both parties. Determining whether a fee award is appropriate requires the court to consider the parties relative ability to pay and the arguable merits of the issues raised on appeal. Leslie v. Verhey, 90 Wn. App. 796, 807, 954 P.2d 330 (1998), review denied, 137 Wn.2d 1003 (1999). Kohls timely submitted a financial affidavit. Kaplan submitted an affidavit along with a motion for an extension of time to file it. His motion is granted. Having considered the merits of Kohls appeal as well as the financial resources available to both parties, we exercise our discretion and deny Kohls request for fees under RCW 26.09.140. Kaplan requests fees under RCW 26.09.160(2)(b)(ii), the same provision that entitles him to a mandatory award of his trial court fees. Because Kohls failed to comply with the court-ordered parenting plan in bad faith, she is responsible for paying reasonable attorney fees and costs that Kaplan incurred to enforce the court s order. See Eklund, 143 Wn. App. at 218-19. Fees on appeal are awarded to Kaplan subject to 16

No. 66510-3-I/17 compliance with RAP 18.1, to the extent of fees incurred for defending the order of contempt. Affirmed. WE CONCUR: 17