FILED JUNE 14, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Marriage of: ) No. 37716-4-III ) JASON LOOS, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) LAURA LOOS, ) ) Respondent. )
PENNELL, J. — Jason Loos appeals an order denying his motion to hold his former
wife, Laura Loos, in contempt for violating the terms of their divorce settlement and
subsequent arbitration. He also appeals a subsequent order denying his motion for
reconsideration. We affirm.
FACTS
In August 2018, Jason and Laura Loos resolved the outstanding issues in their
dissolution proceedings and executed a CR 2A settlement agreement, which included the
following provision: No. 37716-4-III In re Marriage of Loos
7. The property below is given to [Ms. Loos] as their separate property: .... c. [Ms. Loos is] awarded vehicles (BMW which is in excellent condition) in their possession (including loan thereon to be refinanced removing [Mr. Loos] by 12/31/2018 or the vehicle shall be turned back over to Husband to be sold immediately in a reasonable manner and the net sales proceeds, if any, awarded to Wife—including any deficiency).
Clerk’s Papers (CP) at 2.
Ms. Loos was unable to refinance the BMW. The parties then found they
disagreed as to the next steps contemplated by their agreement. They took their dispute to
arbitration. The arbitrator found the provision governing the BMW ambiguous, but ruled
the vehicle must be shipped from Ms. Loos’s location to Mr. Loos’s location, and the
parties would share the cost of transport equally. The arbitrator also determined that
Ms. Loos must “deliver the vehicle along with any titles, keys, and other related
accessories within 10 days of receipt of this award.” Id. at 111. The arbitrator further
found neither party acted in bad faith as the provision at issue was ambiguous. He ordered
each party to pay their own attorney fees and costs, including the cost of arbitration.
Empowered by a provision of the CR 2A agreement to order equitable relief, the
arbitrator found that Ms. Loos was unjustly enriched by her continued use of the BMW
without paying for the loan and insurance. Therefore, the arbitrator found that to the
extent payments for insurance and loan payments for the BMW were made by Mr. Loos
2 No. 37716-4-III In re Marriage of Loos
for January 2019 and later, Ms. Loos should reimburse Mr. Loos for those costs. The
arbitrator determined Ms. Loss was to make payments to Mr. Loos from the BMW’s sales
proceeds. The arbitrator also noted Ms. Loos needed to reimburse Mr. Loos for one-half
of the $500 arbitration fee. He ordered this reimbursement also be made from the BMW
proceeds.
Ms. Loos shipped the BMW to Mr. Loos in 2019. A dispute then arose as to
whether Ms. Loos violated the terms of the CR 2A agreement and arbitration award by
damaging the vehicle prior to shipment, refusing to facilitate sale of the vehicle,
attempting to extort money out of Mr. Loos in return for facilitating the sale, and failing
to pay funds owed to Mr. Loos.
Mr. Loos moved for an order of contempt against Ms. Loos based on the
aforementioned dispute. After considering the matter on the pleadings, the trial court
found Ms. Loos had not acted in bad faith; nevertheless, the court determined Ms. Loos
had not complied with prior court orders or the arbitration award. The court ordered
Ms. Loos pay Mr. Loos for her portion of the arbitrator’s fee, the vehicle shipping fee,
and vehicle insurance and loan payments from January to May 2019. The court did not
make a finding that Ms. Loos’s failure to pay was intentional. It merely issued judgment
3 No. 37716-4-III In re Marriage of Loos
for the amount owing of $4,233.90. Mr. Loos sought reconsideration, which the court
denied without explanation.
Mr. Loos timely appeals the trial court’s orders on contempt and reconsideration.
ANALYSIS
Contempt
In the context of dissolution proceedings, different statutes govern motions for
contempt. Contempt for violating a parenting plan is governed by RCW 26.09.160(2)(b).
Contempt for violating a support or maintenance order is governed by RCW 26.18.050,
which cross references RCW 7.21.010. All other contempt actions fall under the general
contempt statute, RCW 7.21.010. Of the foregoing statutes, only RCW 26.09.160(2)(b)
(governing parenting plans) requires proof of bad faith. The other statutes require proof
of intent. See RCW 7.21.010(1).
The dispute here did not involve violation of a parenting plan under
RCW 26.09.160(2)(b).1 Accordingly, Mr. Loos was only required to prove Ms. Loos
intentionally violated a court order as required by RCW 7.21.010(1)(b). We review
a trial court’s contempt decision for abuse of discretion. In re Marriage of Williams,
1 In his contempt motion, Mr. Loos erroneously cited to chapter 26.09 RCW and chapter 26.18 RCW as the governing legal authority.
4 No. 37716-4-III In re Marriage of Loos
156 Wn. App. 22, 27, 232 P.3d 573 (2010). “A court abuses its discretion by exercising it
on untenable grounds or for untenable reasons.” Id.
Mr. Loos’s argument that the trial court abused its discretion in denying his
contempt motion is unclear. In his opening brief, Mr. Loos claimed the trial court abused
its discretion in denying contempt after finding Ms. Loos acted in bad faith. But in his
reply brief, Mr. Loos acknowledges that he misread the trial court’s ruling, as the trial
court actually found Ms. Loos had “not” acted in bad faith. CP at 55. Mr. Loos does not
fault the trial court for addressing bad faith instead of intent. Indeed, this error appears to
have been invited by Mr. Loos in his motion.2 In any event, because the trial court did not
find Ms. Loos’s failure to comply with the CR 2A agreement or the arbitration award was
accompanied by some sort of volitional mens rea, the court’s findings were consistent
with the denial of the contempt motion.
Mr. Loos appears to argue that he should have been awarded contempt damages,
including repair costs and attorney fees because undisputed evidence shows Ms. Loos
damaged the BMW, failed to abide by the arbitration award, and refused to cooperate
with the sale of the vehicle. To the extent this is Mr. Loos’s position, it fails on several
2 As previously noted, Mr. Loos erroneously cited to chapter 26.09 RCW and chapter 26.18 RCW as support for his contempt motion.
5 No. 37716-4-III In re Marriage of Loos
fronts.
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FILED JUNE 14, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Marriage of: ) No. 37716-4-III ) JASON LOOS, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) LAURA LOOS, ) ) Respondent. )
PENNELL, J. — Jason Loos appeals an order denying his motion to hold his former
wife, Laura Loos, in contempt for violating the terms of their divorce settlement and
subsequent arbitration. He also appeals a subsequent order denying his motion for
reconsideration. We affirm.
FACTS
In August 2018, Jason and Laura Loos resolved the outstanding issues in their
dissolution proceedings and executed a CR 2A settlement agreement, which included the
following provision: No. 37716-4-III In re Marriage of Loos
7. The property below is given to [Ms. Loos] as their separate property: .... c. [Ms. Loos is] awarded vehicles (BMW which is in excellent condition) in their possession (including loan thereon to be refinanced removing [Mr. Loos] by 12/31/2018 or the vehicle shall be turned back over to Husband to be sold immediately in a reasonable manner and the net sales proceeds, if any, awarded to Wife—including any deficiency).
Clerk’s Papers (CP) at 2.
Ms. Loos was unable to refinance the BMW. The parties then found they
disagreed as to the next steps contemplated by their agreement. They took their dispute to
arbitration. The arbitrator found the provision governing the BMW ambiguous, but ruled
the vehicle must be shipped from Ms. Loos’s location to Mr. Loos’s location, and the
parties would share the cost of transport equally. The arbitrator also determined that
Ms. Loos must “deliver the vehicle along with any titles, keys, and other related
accessories within 10 days of receipt of this award.” Id. at 111. The arbitrator further
found neither party acted in bad faith as the provision at issue was ambiguous. He ordered
each party to pay their own attorney fees and costs, including the cost of arbitration.
Empowered by a provision of the CR 2A agreement to order equitable relief, the
arbitrator found that Ms. Loos was unjustly enriched by her continued use of the BMW
without paying for the loan and insurance. Therefore, the arbitrator found that to the
extent payments for insurance and loan payments for the BMW were made by Mr. Loos
2 No. 37716-4-III In re Marriage of Loos
for January 2019 and later, Ms. Loos should reimburse Mr. Loos for those costs. The
arbitrator determined Ms. Loss was to make payments to Mr. Loos from the BMW’s sales
proceeds. The arbitrator also noted Ms. Loos needed to reimburse Mr. Loos for one-half
of the $500 arbitration fee. He ordered this reimbursement also be made from the BMW
proceeds.
Ms. Loos shipped the BMW to Mr. Loos in 2019. A dispute then arose as to
whether Ms. Loos violated the terms of the CR 2A agreement and arbitration award by
damaging the vehicle prior to shipment, refusing to facilitate sale of the vehicle,
attempting to extort money out of Mr. Loos in return for facilitating the sale, and failing
to pay funds owed to Mr. Loos.
Mr. Loos moved for an order of contempt against Ms. Loos based on the
aforementioned dispute. After considering the matter on the pleadings, the trial court
found Ms. Loos had not acted in bad faith; nevertheless, the court determined Ms. Loos
had not complied with prior court orders or the arbitration award. The court ordered
Ms. Loos pay Mr. Loos for her portion of the arbitrator’s fee, the vehicle shipping fee,
and vehicle insurance and loan payments from January to May 2019. The court did not
make a finding that Ms. Loos’s failure to pay was intentional. It merely issued judgment
3 No. 37716-4-III In re Marriage of Loos
for the amount owing of $4,233.90. Mr. Loos sought reconsideration, which the court
denied without explanation.
Mr. Loos timely appeals the trial court’s orders on contempt and reconsideration.
ANALYSIS
Contempt
In the context of dissolution proceedings, different statutes govern motions for
contempt. Contempt for violating a parenting plan is governed by RCW 26.09.160(2)(b).
Contempt for violating a support or maintenance order is governed by RCW 26.18.050,
which cross references RCW 7.21.010. All other contempt actions fall under the general
contempt statute, RCW 7.21.010. Of the foregoing statutes, only RCW 26.09.160(2)(b)
(governing parenting plans) requires proof of bad faith. The other statutes require proof
of intent. See RCW 7.21.010(1).
The dispute here did not involve violation of a parenting plan under
RCW 26.09.160(2)(b).1 Accordingly, Mr. Loos was only required to prove Ms. Loos
intentionally violated a court order as required by RCW 7.21.010(1)(b). We review
a trial court’s contempt decision for abuse of discretion. In re Marriage of Williams,
1 In his contempt motion, Mr. Loos erroneously cited to chapter 26.09 RCW and chapter 26.18 RCW as the governing legal authority.
4 No. 37716-4-III In re Marriage of Loos
156 Wn. App. 22, 27, 232 P.3d 573 (2010). “A court abuses its discretion by exercising it
on untenable grounds or for untenable reasons.” Id.
Mr. Loos’s argument that the trial court abused its discretion in denying his
contempt motion is unclear. In his opening brief, Mr. Loos claimed the trial court abused
its discretion in denying contempt after finding Ms. Loos acted in bad faith. But in his
reply brief, Mr. Loos acknowledges that he misread the trial court’s ruling, as the trial
court actually found Ms. Loos had “not” acted in bad faith. CP at 55. Mr. Loos does not
fault the trial court for addressing bad faith instead of intent. Indeed, this error appears to
have been invited by Mr. Loos in his motion.2 In any event, because the trial court did not
find Ms. Loos’s failure to comply with the CR 2A agreement or the arbitration award was
accompanied by some sort of volitional mens rea, the court’s findings were consistent
with the denial of the contempt motion.
Mr. Loos appears to argue that he should have been awarded contempt damages,
including repair costs and attorney fees because undisputed evidence shows Ms. Loos
damaged the BMW, failed to abide by the arbitration award, and refused to cooperate
with the sale of the vehicle. To the extent this is Mr. Loos’s position, it fails on several
2 As previously noted, Mr. Loos erroneously cited to chapter 26.09 RCW and chapter 26.18 RCW as support for his contempt motion.
5 No. 37716-4-III In re Marriage of Loos
fronts. For one thing, Ms. Loos disputed all of Mr. Loos’s factual claims. Thus, the
evidence was not undisputed and the trial court could rightly deny Mr. Loos’s motion
based on a failure of proof. In addition, while Ms. Loos was required to make payments
pursuant to the arbitration award, those payments were not due until after the sale of the
BMW. Because the BMW had not been sold at the time of the contempt motion, there
was no direct violation of the arbitration award.
In his reply brief, Mr. Loos cites to the case of In re Marriage of Lyle, 199 Wn.
App. 629, 398 P.3d 1225 (2017), for the argument that the trial court had the “power to
order anything the pleadings and facts warrant.” Reply Br. of Appellant at 2. This is a
misreading of the decision. In Lyle, we held that on a motion for revision the superior
court had the authority to not only reverse the commissioner’s decision on the
modification of child support, but also to provide an appropriate remedy. 199 Wn. App.
at 630. Lyle did not involve review of an arbitration award and did not afford judges
unbridled authority to issue awards in dissolution disputes.
Attorney fees
Mr. Loos argues that the trial court abused its discretion when it refused to award
him attorney fees for having to litigate to enforce the arbitration award and because of
Ms. Loos’s intransigence. We disagree.
6 No. 37716-4-III In re Marriage of Loos
Mr. Loos filed a motion for contempt, but the trial court did not find contempt.
Given this circumstance, the trial court did not abuse its discretion in failing to award fees
on the basis asserted by Mr. Loos. See RCW 7.21.030(3); In re Marriage of Humphreys,
79 Wn. App. 596, 599, 903 P.2d 1012 (1995). In his contempt motion, Mr. Loos made a
reference to intransigence and cited cases authorizing attorney fee awards based on
intransigence. However, the trial court never made a finding of intransigence. Given this
circumstance, it was not an abuse of discretion to deny Mr. Loos’s request for fees.
APPELLATE ATTORNEY FEES
Both parties request attorney fees on appeal. Under RAP 18.1(a), we may award
attorney fees if authorized by applicable law. To be entitled to fees, a party must devote a
section of their opening brief to the request. RAP 18.1(b). Compliance with RAP 18.1(b)
requires more than a “bald request.” Thweatt v. Hommell, 67 Wn. App. 135, 148, 834
P.2d 1058 (1992). Argument and citation to authority are required. Austin v. U.S. Bank of
Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994).
Mr. Loos cites RCW 7.21.030(3) as a basis for a fee award. This statute affords
discretion to award attorney fees against a party found in contempt. Because Ms. Loos
was not found in contempt, Mr. Loos is not entitled to fees under this statute.
7 No. 37716-4-III In re Marriage of Loos
Both parties cite RCW 26.09.140 as authority for a fee award. This statute
provides discretion for awarding fees in an appeal of a dissolution action. In exercising
our discretion, we consider the arguable merits of the case and the parties’ financial
resources. In re Marriage of King, 66 Wn. App. 134, 139, 831 P.2d 1094 (1992). For us
to consider financial resources, the parties must file financial declarations at least 10 days
before the date the case is set for consideration on the merits. RAP 18.1(c).
Because Mr. Loos is not the prevailing party on appeal and has not demonstrated
an inability to pay the costs of appeal, we decline to award attorney fees under
RCW 26.09.140.
Ms. Loos’s argument in support of fees is based on her purported poverty and
Mr. Loos’s bad faith in bringing the appeal. Ms. Loos does not argue Mr. Loos’s appeal is
frivolous as contemplated by RAP 18.9(a). Nor has she filed a declaration setting forth
her financial circumstances. Thus, we deny Ms. Loos’s request for fees.
CONCLUSION
The orders on appeal are affirmed. The parties’ request for attorney fees on appeal
are denied.
8 No. 37716-4-III In re Marriage of Loos
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.
_________________________________ Pennell, J.
WE CONCUR:
______________________________ Lawrence-Berrey, A.C.J.
______________________________ Staab, J.