Opinion
No. 25241-8-III.
March 27, 2007.
Appeal from a judgment of the Superior Court for Asotin County, No. 05-3-00012-0, William D. Acey, J., entered May 9, 2006.
Counsel for Appellant(s), Scott Calvin Broyles, Attorney at Law, Clarkston, WA.
Counsel for Respondent(s), Tina Lynn Kernan, Law Offices of Clark Feeney, Lewiston, ID.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Kulik, J.
Tara-Lei Uhrich appeals the trial court's contempt order, contending no evidence shows she refused to follow paragraphs 3.11 and 3.13 of the final parenting plan between her and James Nelson. She further argues she cannot be held in contempt under RCW 26.09.160 since paragraphs 3.11 and 3.13 in the parenting plan are "duties" and not "residential provisions." We disagree, and affirm.
FACTS
In August 2005, Ms. Uhrich (formerly Nelson) and Mr. Nelson entered into a final parenting plan regarding the care of their two minor children, Sara and Adam. Section 3.11 required Ms. Uhrich to reimburse Mr. Nelson for additional airline travel costs within seven days of the flight. Section 3.13 included the following "other" requirements: (1) "When a child of the parties isn't residing with a given parent, that parent shall be permitted unimpeded and unmonitored telephone access with the children;" (2) "Both parents are restrained and enjoined from attempting to coerce said child into false or negative beliefs about, negative or abusive behavior toward, or attempt[ing] to alienate said child f[rom] the other parent, step-parent;" (3) "Each parent shall provide the other parent promptly with receipt of any significant information regarding the welfare of the children, including physical and mental health, performance in school, extracurricular activities, etc.;" (4) "Neither parent shall advise the children of the status of child support payments or other legal matters regarding the parent's relationship;" (5) "Neither parent shall use the children directly or indirectly, to gather information about the other parent o[r] take verbal messages to the other parent;" and (6) "Neither parent shall make derogatory comments about the other parent or allow anyone else to do the same in the children's presence." Clerk's Papers (CP) at 209-211.
Following the order, Ms. Uhrich failed to reimburse Mr. Nelson for additional airline costs, within the required seven-day period, in October and November 2005 and February 2006. In November 2005, while Sara was on the phone with Tammy Nelson (Mr. Nelson's current wife), Ms. Uhrich told her to tell Ms. Nelson she "was violating the parenting plan, that [she] was interfering with her parenting, that [she] was in contempt and that she was going to take [them] to court." CP at 39. When Mr. Nelson called to talk to the children, Ms. Uhrich turned off the children's cell phones and repeatedly hung up on his calls to her home phone. Ms. Uhrich eventually answered the phone and called Mr. Nelson's wife derogatory names in front of the children.
Ms. Uhrich failed to keep Mr. Nelson informed of the children's school performance, medical information, or medical insurance. She failed to communicate with Mr. Nelson about Adam's declining grades. Adam's teacher eventually contacted Mr. Nelson by e-mail to inform him that Adam was failing both subjects she taught. Ms. Uhrich refused to tell Mr. Nelson that Adam had been sick and had been going to the doctor and she refused to provide him with the name of his doctor. She refused to tell Mr. Nelson where she took Sara for her eye exam and she refused to provide him with a copy of the children's insurance information.
Ms. Uhrich talked about Mr. and Ms. Nelson in a derogatory manner in front of the children. She repeatedly told the children that Mr. Nelson was not current in his child support payments, and that both Mr. and Ms. Nelson were drug users.
Mr. Nelson moved for contempt. The court found Ms. Uhrich violated each of the parenting plan provisions listed above and it ordered her to pay Mr. Nelson's attorney fees and costs. The court entered specific findings of bad faith regarding Ms. Uhrich's failure to timely reimburse Mr. Nelson for airline travel and her failure to keep Mr. Nelson informed of the children's performance in school. Ms. Uhrich appealed.
ANALYSIS
The issue is whether, considering this record, the trial court erred in finding Ms. Uhrich in contempt of the final parenting plan. Ms. Uhrich contends she cannot be held in contempt under RCW 26.09.160 since no evidence shows she refused to comply with duties in paragraphs 3.11 and 3.13, and since she did not violate a residential provision.
We review a trial court's finding of contempt for abuse of discretion. In re Marriage of Davisson, 131 Wn. App. 220, 224, 126 P.3d 76, review denied, 143 P.3d 828 (2006). A court abuses its discretion if its decision is based on untenable grounds or reasons. Id.
A trial court may exercise its contempt powers under RCW 26.09.160(1) based on a party's failure to comply with a parenting plan. RCW 26.09.160 prohibits "[a]n attempt by a parent, . . . to refuse to perform the duties provided in the parenting plan, or to hinder the performance by the other parent of duties provided in the parenting plan." Any such acts "shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court and by awarding to the aggrieved party reasonable attorneys' fees and costs incidental in bringing a motion for contempt of court." RCW 26.09.160(1).
Here, the court found Ms. Uhrich failed/refused to comply with several provisions in the parenting plan and it entered specific findings of bad faith. The record on appeal supports those findings. Davisson, 131 Wn. App. at 224. The court did not err in finding Ms. Uhrich in contempt and ordering her to pay Mr. Nelson's attorney fees and costs. First, RCW 26.09.160(1) does not address residential provisions, it addresses duties. Second, Ms. Uhrich's failure to comply is "deemed" bad faith under RCW 26.09.160(1), and further, the court did enter specific findings of bad faith.
ATTORNEY FEES
Mr. Nelson requests attorney fees under RAP 18.1, RCW 26.09.160(1), and RCW 26.09.140. A party is entitled to reasonable attorney fees on appeal under RCW 26.09.160(1) for bringing a successful contempt action. In re Marriage of Rideout, 150 Wn.2d 337, 358-59, 77 P.3d 1174 (2003). Mr. Nelson is entitled to reasonable attorney fees under RCW 26.09.160(1). Id.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, J.
Kulik, J.