In re the Marriage of Davisson

126 P.3d 76, 131 Wash. App. 220, 2006 Wash. App. LEXIS 32
CourtCourt of Appeals of Washington
DecidedJanuary 12, 2006
DocketNo. 23542-4-III
StatusPublished
Cited by8 cases

This text of 126 P.3d 76 (In re the Marriage of Davisson) 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 the Marriage of Davisson, 126 P.3d 76, 131 Wash. App. 220, 2006 Wash. App. LEXIS 32 (Wash. Ct. App. 2006).

Opinion

¶1

Brown, J.

— Michelle R. Davisson and her former husband, Willis B. Davisson, were to co-parent under their parenting plan, with joint education and religious decision-making and required mediation for dispute resolution. Over Mr. Davisson’s objection, Ms. Davisson enrolled the parties’ son in a religion-based preschool. On Mr. Davisson’s mo[223]*223tion, the trial court held Ms. Davisson in contempt for failure to follow the parenting plan mediation provisions. Ms. Davisson appealed. We affirm.

FACTS

¶2 When the parties dissolved their marriage in September 2002, their parenting plan specified joint custody plus joint decision-making on educational and religious upbringing issues. The plan requires mediation for resolving disputes on issues requiring joint decision-making.

¶3 The parties used two Spokane area daycare providers, Christy Peck and Little Learners. In June 2004, Ms. Peck gave notice that she was no longer going to provide daycare services. The parties could not agree on replacement daycare. On the last day of Ms. Peck’s service, Ms. Davisson’s attorney wrote a letter to Mr. Davisson’s attorney expressing Ms. Davisson’s unilateral desire to place their son at Challenger Christian Day School in Post Falls, Idaho. Mr. Davisson objected, but Ms. Davisson enrolled their son anyway.

¶4 Mr. Davisson initiated contempt proceedings under RCW 26.09.160, arguing Ms. Davisson’s enrollment of their son at Challenger violated their parenting plan’s joint decision-making provision regarding education and religious upbringing. The trial court found Ms. Davisson in contempt of the parenting plan for failing to follow the plan’s mediation requirements. The court found she “intentionally failed to comply with a lawful order of the court.” Clerk’s Papers (CP) at 41. In the court’s oral ruling, the judge stated she did not “know the religion of these parents, but this daycare is clearly Christian.” Report of Proceedings (RP) at 17. Without specifically finding bad faith, the court found the violation “willful.” RP at 17. This appeal followed.

ANALYSIS

¶5 The issue is whether the trial court erred in finding Ms. Davisson in contempt for noncompliance with the parties’ parenting plan.

[224]*224¶6 We review a trial court’s decision on contempt for an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995). Discretion is abused if the court’s exercise of discretion was based on untenable grounds or untenable reasons. Id. at 440.

¶7 In reviewing a contempt finding, we look for facts constituting a plain order violation and strictly construe the order. In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995). A contempt finding will be upheld on review if we find the order is supported by a “ ‘proper basis.’ ” State v. Hobble, 126 Wn.2d 283, 292, 892 P.2d 85 (1995) (quoting State v. Boatman, 104 Wn.2d 44, 46, 700 P.2d 1152 (1985)).

¶ 8 Ms. Davisson initially contends the court erred in not making a finding of bad faith to support its contempt order. RCW 26.09.160(2)(b) requires the court to find a parent in contempt after it has found the parent has in “bad faith” failed to comply with the parenting plan. In James, Division One of this court addressed whether a specific finding of bad faith was required. It held, “both the judicial concern for the rights of contemnors and [RCW 26-.09.160(2)(b)] support a requirement that the trial court make a specific finding of bad faith or intentional misconduct as a predicate for its contempt judgment.” James, 79 Wn. App. at 440 (emphasis added). While the court here did not make a specific finding of bad faith, it correctly reasoned Ms. Davisson “intentionally failed to comply with a lawful order of the court.” CP at 41. The finding is sufficient under RCW 26.09.160(2)(b) and James.

¶9 Next, Ms. Davisson contends the court erred because placing their son at Challenger did not require joint-decision making. She argues the day school is not an educational school, nor contrary to the parties’ religious beliefs. Thus, she reasons, she did not intentionally fail to comply with the parenting plan. While the parties’ son is now in kindergarten, this record does not show if Ms. [225]*225Davisson planned to continue their son at Challenger. And while Ms. Davisson could purge her contempt by participating in mediation, the court did assess $250 in attorney fees against her. For these reasons, although the ultimate issue may be moot, we next analyze Ms. Davisson’s joint decision-making concerns.

110 Under the terms of the parenting plan, “Educational decisions” and “Religious upbringing” are considered major decisions and must be made jointly. CP at 7. If a dispute occurs, the parties must first mediate the dispute.

¶11 Here, the record supports the court’s finding of the religious nature of Challenger. Challenger describes itself as a Christian school, caring for and educating children in a “Godly atmosphere.” CP at 21. Irrespective of whether Challenger is a school or a daycare, it is clearly a Christian facility with Christian teachings incorporated into its curriculum. Even if both parties share Christian beliefs, the choice of placing their son in a religious school relates to his education and religious upbringing. Strictly construing the 2002 order, this decision was to be made jointly or, if disputed, submitted to mediation. Ms. Davisson’s unilateral decision to place their son at Challenger over Mr. Davisson’s objection violated the joint decision-making provision of the parties’ parenting plan.

¶12 Ms. Davisson next contends she did not willfully fail to comply with the parenting plan because she had her attorney notify Mr. Davisson’s attorney before she enrolled their son at Challenger, and she believed her choice did not require joint approval. “Parents are deemed to have the ability to comply with orders establishing residential provisions and the burden is on a noncomplying parent to establish by a preponderance of the evidence that he or she lacked the ability to comply with the residential provisions of a court-ordered parenting plan or had a reasonable excuse for noncompliance.” In re Marriage of Rideout, 150 Wn.2d 337, 352-53, 77 P.3d 1174 (2003).

¶13 If the trial court finds that a parent has “ ‘not complied with the order establishing residential provisions’ [226]*226of a parenting plan in ‘bad faith,’ the court ‘shall find’ the parent in contempt of court.” Rideout,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bryce Michael French v. Sarah Ann French
Court of Appeals of Washington, 2024
Jennifer M. McCluskey v. David A. Saunders
Court of Appeals of Washington, 2023
In Re: Nicolaas Devogel, V. Heidi Padilla
Court of Appeals of Washington, 2022
In the Matter of the Custody of: G.A.K.K.
Court of Appeals of Washington, 2021
In Re The Marriage Of: Leslie Orr, And Jeffrey Mccann
Court of Appeals of Washington, 2019
In Re Marriage of Davisson
126 P.3d 76 (Court of Appeals of Washington, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
126 P.3d 76, 131 Wash. App. 220, 2006 Wash. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-davisson-washctapp-2006.