In Re Marriage of Eklund

177 P.3d 189
CourtCourt of Appeals of Washington
DecidedFebruary 20, 2008
Docket35518-3-II
StatusPublished
Cited by31 cases

This text of 177 P.3d 189 (In Re Marriage of Eklund) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Eklund, 177 P.3d 189 (Wash. Ct. App. 2008).

Opinion

177 P.3d 189 (2008)

In re the MARRIAGE OF Cheri Louise EKLUND, Appellant, and
Michael Allen EKLUND, Respondent.

No. 35518-3-II.

Court of Appeals of Washington, Division 2.

February 20, 2008.

*190 Patricia S. Novotny, Attorney at Law, Seattle, WA, Michael Von Roe, Attorney at Law, Vancouver, WA, for Appellant.

Brendan Finucane Patrick, Attorney at Law, Seattle, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 Cheri Eklund asked the Cowlitz County Superior Court to find her former husband, Michael Eklund, in contempt for violating the court-ordered parenting plan and interfering with her residential time with their child. The trial court entered a single contempt finding for six alleged violations and found that Michael had acted in bad faith when he intentionally failed to comply with the parenting plan's alternative care provision. Despite finding that Michael was in contempt and had acted in bad faith, the trial court declined to order (1) makeup time, (2) attorney fees and costs, or (3) the civil *191 penalty required under RCW 26.09.160. We affirm the trial court's single finding of contempt, but because the statutory penalties are mandatory, we reverse and remand with direction that the trial court impose these penalties in a manner consistent with this opinion and RCW 26.09.160(2)(b).

FACTS

¶ 2 Cheri and Michael[1] divorced when their son, N.E.,[2] was three years old. The final parenting plan was entered on February 22, 2002.

¶ 3 On July 18, 2006, Cheri moved for an order to show cause why Michael should not be found in contempt of that parenting plan for intentionally refusing to offer Cheri the first option to care for N.E. when Michael could not do so for at least four hours—the plan's alternative care provision. Cheri asserted that Michael repeatedly violated the parenting plan's alternative care provision between June 25, 2005, and April 17, 2006, and that, as a result, she was deprived of nine overnights with N.E. to which she was entitled under the plan.

¶ 4 The parenting plan's alternative care provision provides:

If a parent scheduled to have the child is unable to do so for a period of at least four hours, that parent shall promptly notify the other parent and the other parent shall then have the option to care for the child while the normally-scheduled parent is absent. The child shall not be placed in daycare or with babysitters during the extended period of time that the other parent is available and agrees to provide the care. This does not eliminate the normallyscheduled parent's responsibility to arrange for alternative care when necessary.

Clerk's Papers (CP) at 5.

¶ 5 Michael admitted that he intentionally placed N.E. with his girl friend or N.E.'s grandmother without first offering Cheri the option of caring for N.E. as the plan required. But he argued that his failure to comply was not in bad faith because the trial court should find that N.E.'s maternal grandmother and Michael's girl friend were not day-care providers or baby-sitters. Michael also argued that, because his then live-in girl friend is now his wife, the record contained sufficient evidence to prove that he was not acting in bad faith by placing N.E. in her care.

¶ 6 Noting that the parties had not moved to modify the parenting plan to allow Michael's wife and N.E.'s grandmother to care for N.E., the trial court rejected Michael's argument and stated:

[A] spouse is not a babysitter. But I don't think that it is any kind of stretch or unusual interpretation to say that pretty much everybody else is, and it doesn't really matter to me if there's some sort of attenuated degree of consanguinity here that takes a chart to sort out. . . . They're family, they're related, but they're still babysitters.

Report of Proceedings at 12.

¶ 7 The trial court found that Michael acted in bad faith when he placed N.E. with the maternal grandmother or his girl friend without first offering Cheri the option of caring for N.E. when he was unable to do so for more than four hours and that he was in contempt of the parenting plan for this conduct. The trial court also found that the overnight visit N.E. had with friends was an ordinary life experience that did not violate the plan. Despite these findings, the trial court refused to impose the mandatory statutory penalties or order that Michael pay attorney fees and costs. Cheri appeals. Michael does not cross-appeal.

¶ 8 This appeal presents the following issues: (1) Did the trial court erroneously consolidate the separate violations of the parenting plan into a single finding of contempt? (2) Did the trial court err when it found Michael in contempt but declined to (a) order make-up residential time, (b) require Michael *192 to pay Cheri's attorney fees, and (c) impose statutory civil penalties? (3) Did the trial court err when it opined that the plan's optional residential provisions do not operate when Michael left N.E. in his new wife's care for more than four hours?

¶ 9 As to the first two issues, we hold that the trial court did not err by consolidating multiple violations of the parenting plan into a single contempt finding. But we hold that this finding required that the trial court order make-up residential time, require that Michael pay Cheri's attorney fees and costs, and impose the mandatory statutory civil penalties. As to the third issue, we decline to address the merits of the trial court's advisory oral ruling suggesting that, because Michael has remarried, he need not give Cheri the option of caring for N.E. before leaving him in his new wife's care. We are not unmindful of the practical problems created by the changing needs of all involved. But these issues must be addressed through a motion to modify the parenting plan, not in an advisory opinion from the trial court or this court.

ANALYSIS

Contempt Finding

¶ 10 Cheri alleged that Michael violated the parenting plan's alternate care provision on six separate occasions and that the trial court erred when it "collapsed" Michael's numerous violations into one finding of contempt. Br. of Appellant at 1. Michael asserts that Cheri never asked the trial court to enter multiple findings of contempt, but our review of the record belies this claim. During argument, Cheri's trial counsel repeatedly asked that the trial court find Michael had committed contempt nine times.

¶ 11 We review a trial court's decision in a contempt proceeding for an abuse of discretion. In re Marriage of James, 79 Wash.App. 436, 440, 903 P.2d 470 (1995). A trial court abuses its discretion by exercising it on untenable grounds or for untenable reasons. James, 79 Wash.App: at 440, 903 P.2d 470. We review the trial court's factual findings for substantial evidence. In re Marriage of Myers, 123 Wash.App. 889, 893, 99 P.3d 398 (2004). We do not review credibility determinations on appeal. In re Marriage of Rideout, 150 Wash.2d 337, 352, 77 P.3d 1174 (2003).

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Cite This Page — Counsel Stack

Bluebook (online)
177 P.3d 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-eklund-washctapp-2008.