IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of R.J. No. 85747-9-I
ROB L. JACOBS, DIVISION ONE
Respondent, UNPUBLISHED OPINION
v.
GALE ELIZABETH MCARTHUR,
Appellant.
HAZELRIGG, A.C.J. — Gale McArthur appeals from an order finding her in
contempt of the parenting plan she entered into with Rob Jacobs in June 2023.
She asserts that evidentiary errors, misapplication of the controlling law, and
violation of her due process rights require reversal. She also assigns error to the
fee award. We disagree and affirm.
FACTS
Rob Jacobs and Gale McArthur have a child in common, R.J. They entered
into a parenting plan in June 2023, when R.J. was three years old, after mediation.
Their parenting plan provides for equal residential time and expressly includes
provisions that address the use of social media and derogatory comments about
the parents:
Social Media. The Child’s social media shall be either not permitted or by agreement permitted with equal access by both parents. No. 85747-9-I/2
Neither parent shall make any remarks about the other parent on their or the Child’s social media platform. Nor shall the parties allow any third party to create a social media profile for the child or make negative remarks about either party. .... Derogatory Comments. Neither parent shall make derogatory comments about the other parent or allow anyone else to do so in child’s presence. Neither parent shall allow or encourage to make derogatory comments about the other parent.
(Boldface omitted.) The parenting plan also orders mediation to resolve any
disputes that arise.
In July 2023, Jacobs filed a motion for contempt based on McArthur’s
alleged violation of the parenting plan. Jacobs averred that McArthur had posted
about Jacobs from R.J.’s social media account and in those posts she “made
several derogatory accusations and statements” against him. Jacobs’ motion was
accompanied by a declaration with an appended exhibit containing screenshots of
the social media posts in question. The court issued an order to show cause and
set a hearing.
In August 2023, McArthur responded with her own pro se motion, which
asked the court to vacate the show cause order, compel mediation, and impose
CR 11 sanctions against Jacobs. Simultaneously, McArthur filed a “Strict Reply
and Declaration of Gale E. McArthur to Petitioner’s Non-Response and Request
for Default Order” and a motion to revise the earlier show cause order, as well as
other materials that were not transmitted to this court in the record on appeal.
The parties appeared before a court commissioner on August 29, 2023 for
a hearing on Jacobs’ motion for contempt; Jacobs was represented by counsel
and McArthur appeared pro se. The commissioner heard argument from both
-2- No. 85747-9-I/3
sides and addressed various related issues and arguments that McArthur raised.
At the end of the hearing, the commissioner found McArthur in contempt.
The commissioner found that “[b]ased on the language in the FaceBook[1]
post, it could not possibly be any clearer that [McArthur] explicitly attempted to
condition one aspect of the Parenting Plan (the prohibition on posting negative
statements about the petitioner on the child’s social media page) upon another
condition.” This written finding was consistent with her oral ruling that “attempting
to condition one aspect of the parenting plan on another is the basis for contempt
[under RCW 26.09.160]. And again, here it was—it was very—it was very
blatant.” 2 McArthur moved for both revision and reconsideration of the contempt
order and both motions were denied.
McArthur timely appealed.
ANALYSIS
I. Evidence Supporting Order on Contempt
McArthur devotes two separate sections of her opening brief to the
contempt finding and, as the issues therein are intertwined, they are logically
addressed together. First, she alleges that the commissioner relied on
“inadmissible hearsay evidence and unauthenticated documents,” because the
images of the social media post “lacked a timestamp or any authentication.” Later
in her briefing, McArthur asserts that the contempt finding was “based on
inadequate evidence,” because the evidence presented did not support a finding
1 An Internet-based social media and social networking service. 2 The commissioner expressly adopted and incorporated her oral rulings in the written
order.
-3- No. 85747-9-I/4
of a willful violation of the parenting plan or that the “violation substantially hindered
the execution of the plan” as required by the contempt statute.
In reply, Jacobs argues that the contempt finding was supported by
sufficient evidence that established McArthur had attempted to condition
performance of one part of the parenting plan on the performance of another, one
of the explicit bases for a contempt finding under the statute. He further asserts
that the finding that McArthur had acted in bad faith, and was therefore in contempt,
was supported by the signed declarations of both parties submitted to the court
under threat of perjury. In particular, he points to McArthur’s admission on her own
social media page that she had made the post on R.J.’s page, which Jacobs
included as an exhibit to his declaration in strict reply in support of his contempt
motion. 3
RCW 26.09.160(1) authorizes contempt proceedings for failure to follow a
parenting plan and explains that
[a]n attempt by a parent, in either the negotiation or the performance of a parenting plan, to condition one aspect of the parenting plan upon another, . . . or to hinder the performance by the other parent of duties provided in the parenting plan, 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.
“In a contempt case the trial court balances competing documentary evidence,
resolves conflicts, weighs credibility, and ultimately makes determinations
regarding bad faith.” In re Marriage of Williams, 156 Wn. App. 22, 28, 232 P.3d
3 R.J. was 3 years old at the time of the contempt hearing. It is unclear from the record who established the page on behalf of the toddler, but the parties do not appear to dispute that McArthur had access to it, including the ability to post.
-4- No. 85747-9-I/5
573 (2010). In the context of a parenting plan, the parent seeking the contempt
finding must establish bad faith by a preponderance of the evidence. Id. ER 901(a)
states that a document can be authenticated by “evidence sufficient to support a
finding that the matter in question is what the proponent claims.” Additionally, a
statement is not hearsay if it is “offered against a party and . . . is the party’s own
statement, in either an individual or representative capacity.” ER 801(d)(2). We
review contempt findings for substantial evidence. In re Marriage of Rideout, 150
Wn.2d 337, 351, 77 P.3d 1174 (2003).
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of R.J. No. 85747-9-I
ROB L. JACOBS, DIVISION ONE
Respondent, UNPUBLISHED OPINION
v.
GALE ELIZABETH MCARTHUR,
Appellant.
HAZELRIGG, A.C.J. — Gale McArthur appeals from an order finding her in
contempt of the parenting plan she entered into with Rob Jacobs in June 2023.
She asserts that evidentiary errors, misapplication of the controlling law, and
violation of her due process rights require reversal. She also assigns error to the
fee award. We disagree and affirm.
FACTS
Rob Jacobs and Gale McArthur have a child in common, R.J. They entered
into a parenting plan in June 2023, when R.J. was three years old, after mediation.
Their parenting plan provides for equal residential time and expressly includes
provisions that address the use of social media and derogatory comments about
the parents:
Social Media. The Child’s social media shall be either not permitted or by agreement permitted with equal access by both parents. No. 85747-9-I/2
Neither parent shall make any remarks about the other parent on their or the Child’s social media platform. Nor shall the parties allow any third party to create a social media profile for the child or make negative remarks about either party. .... Derogatory Comments. Neither parent shall make derogatory comments about the other parent or allow anyone else to do so in child’s presence. Neither parent shall allow or encourage to make derogatory comments about the other parent.
(Boldface omitted.) The parenting plan also orders mediation to resolve any
disputes that arise.
In July 2023, Jacobs filed a motion for contempt based on McArthur’s
alleged violation of the parenting plan. Jacobs averred that McArthur had posted
about Jacobs from R.J.’s social media account and in those posts she “made
several derogatory accusations and statements” against him. Jacobs’ motion was
accompanied by a declaration with an appended exhibit containing screenshots of
the social media posts in question. The court issued an order to show cause and
set a hearing.
In August 2023, McArthur responded with her own pro se motion, which
asked the court to vacate the show cause order, compel mediation, and impose
CR 11 sanctions against Jacobs. Simultaneously, McArthur filed a “Strict Reply
and Declaration of Gale E. McArthur to Petitioner’s Non-Response and Request
for Default Order” and a motion to revise the earlier show cause order, as well as
other materials that were not transmitted to this court in the record on appeal.
The parties appeared before a court commissioner on August 29, 2023 for
a hearing on Jacobs’ motion for contempt; Jacobs was represented by counsel
and McArthur appeared pro se. The commissioner heard argument from both
-2- No. 85747-9-I/3
sides and addressed various related issues and arguments that McArthur raised.
At the end of the hearing, the commissioner found McArthur in contempt.
The commissioner found that “[b]ased on the language in the FaceBook[1]
post, it could not possibly be any clearer that [McArthur] explicitly attempted to
condition one aspect of the Parenting Plan (the prohibition on posting negative
statements about the petitioner on the child’s social media page) upon another
condition.” This written finding was consistent with her oral ruling that “attempting
to condition one aspect of the parenting plan on another is the basis for contempt
[under RCW 26.09.160]. And again, here it was—it was very—it was very
blatant.” 2 McArthur moved for both revision and reconsideration of the contempt
order and both motions were denied.
McArthur timely appealed.
ANALYSIS
I. Evidence Supporting Order on Contempt
McArthur devotes two separate sections of her opening brief to the
contempt finding and, as the issues therein are intertwined, they are logically
addressed together. First, she alleges that the commissioner relied on
“inadmissible hearsay evidence and unauthenticated documents,” because the
images of the social media post “lacked a timestamp or any authentication.” Later
in her briefing, McArthur asserts that the contempt finding was “based on
inadequate evidence,” because the evidence presented did not support a finding
1 An Internet-based social media and social networking service. 2 The commissioner expressly adopted and incorporated her oral rulings in the written
order.
-3- No. 85747-9-I/4
of a willful violation of the parenting plan or that the “violation substantially hindered
the execution of the plan” as required by the contempt statute.
In reply, Jacobs argues that the contempt finding was supported by
sufficient evidence that established McArthur had attempted to condition
performance of one part of the parenting plan on the performance of another, one
of the explicit bases for a contempt finding under the statute. He further asserts
that the finding that McArthur had acted in bad faith, and was therefore in contempt,
was supported by the signed declarations of both parties submitted to the court
under threat of perjury. In particular, he points to McArthur’s admission on her own
social media page that she had made the post on R.J.’s page, which Jacobs
included as an exhibit to his declaration in strict reply in support of his contempt
motion. 3
RCW 26.09.160(1) authorizes contempt proceedings for failure to follow a
parenting plan and explains that
[a]n attempt by a parent, in either the negotiation or the performance of a parenting plan, to condition one aspect of the parenting plan upon another, . . . or to hinder the performance by the other parent of duties provided in the parenting plan, 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.
“In a contempt case the trial court balances competing documentary evidence,
resolves conflicts, weighs credibility, and ultimately makes determinations
regarding bad faith.” In re Marriage of Williams, 156 Wn. App. 22, 28, 232 P.3d
3 R.J. was 3 years old at the time of the contempt hearing. It is unclear from the record who established the page on behalf of the toddler, but the parties do not appear to dispute that McArthur had access to it, including the ability to post.
-4- No. 85747-9-I/5
573 (2010). In the context of a parenting plan, the parent seeking the contempt
finding must establish bad faith by a preponderance of the evidence. Id. ER 901(a)
states that a document can be authenticated by “evidence sufficient to support a
finding that the matter in question is what the proponent claims.” Additionally, a
statement is not hearsay if it is “offered against a party and . . . is the party’s own
statement, in either an individual or representative capacity.” ER 801(d)(2). We
review contempt findings for substantial evidence. In re Marriage of Rideout, 150
Wn.2d 337, 351, 77 P.3d 1174 (2003).
Here, the commissioner relied on the signed declarations of both parties
and the various materials each provided in advance of the hearing to reach the
contempt finding. McArthur appeared at the hearing pro se and both provided her
own narrative argument and answered the procedural questions of the court.
However, the court was clear that it was not considering McArthur’s argument as
testimony because it was not offered under oath. McArthur challenges the
sufficiency of the evidence on which the commissioner’s ruling rests. However, a
preponderance of the evidence is the lowest standard of proof applied in our courts
and only requires a showing that the proposition is more probably true than not. In
re Dep. of H.W., 92 Wn. App. 420, 425, 961 P.2d 963 (1998); In re Custody of
C.C.M. 149 Wn. App. 184, 202, 202 P.3d 971 (2009) (describing standard as “low
end of the protective spectrum”).
The commissioner’s order quoted the following from the offending social
media post in support of the finding that McArthur had conditioned one aspect of
the parenting plan upon another:
-5- No. 85747-9-I/6
Dad [(Jacobs)] isn’t following his PP [(Parenting Plan)] agreement, refusing mediation to discuss WHY he has a new lady in our house, so we’ll let this sit here until he follows the PP. . .
The PP also says no social media. So until Dad gets his a** back into mediation like PP says over this new living situation . . . then we ‘ll let this sit right here.
(Most alterations in original.) The commissioner found that McArthur “clearly
understood that she was posting on FaceBook in violation of the Parenting Plan
and did so expressly because she was upset that [Jacobs] would not agree to
mediation and/or to put pressure on him to attend mediation.” The commissioner
noted the offending post was only up for a limited period of time and questioned
Jacobs about the screenshots he offered as proof. While she was not under oath,
McArthur began her substantive argument to the court by effectively admitting that
she made the post.
[THE COURT:] All right, Ms. McArthur, whenever you’re ready, why don’t you go ahead and I will stop you when you are at time.
[McARTHUR]: I’d like to start with [the] Facebook posting, July 15th. I apologized for my posting. .... Those posts could reflect bad on me in the long term. Please accept my apologies, and I will stay off social media for a while.
She further corrected Jacobs as to the date the post was made and offered, “I can
show the court.”
By proffering the screenshots of the social media post in question with a
signed declaration under the threat of perjury, Jacobs acted to authenticate the
document pursuant to ER 901. Because Jacobs offered McArthur’s own statement
against her, it was not hearsay under ER 801. The commissioner also credited
-6- No. 85747-9-I/7
the explanation Jacobs provided that addressed the absence of any date on the
post; he had received it from a third party before the post was taken down. Jacobs
took the necessary steps to authenticate the evidence of the post he provided to
the court such that it was admissible. The documentary evidence provided by the
parties, and McArthur’s answers to the court’s questions about the period of time
the post in question was online, satisfy the low evidentiary standard of proof
applicable here. More critically, the content of the post itself establishes that
McArthur’s violation of the plan by means of the social media post was intended to
coerce Jacobs into attending mediation over other grievances. Accordingly, there
was sufficient admissible evidence to support the commissioner’s finding of
contempt against McArthur.
II. Purported Due Process Violations at Show Cause Hearing
McArthur next alleges that her due process rights were violated when the
commissioner “did not allow her to present oral testimony or secure legal
representation” during the contempt proceedings. Jacobs responds that we need
not consider this assignment of error because “this argument can be disposed of
on the basis that the facts she alleges are misrepresentations.” This assignment
of error fails for two separate procedural reasons. First, Jacobs is correct that it is
premised on assertions that are not borne out in the report of proceedings.
Second, while McArthur cites case law in support of this challenge, she fails to
identify the relevant test for an alleged due process violation, much less apply it to
the facts of her case. Because we do not consider claims that are insufficiently
argued or are unsupported by facts in the record, we decline to consider this issue
-7- No. 85747-9-I/8
further. RAP 10.3(a)(6); see also In re Vulnerable Adult Petition of Winter, 12 Wn.
App. 2d 815, 835, 460 P.3d 667 (2020).
III. Fee Award
McArthur claims that the trial erred “by imposing punitive fees of $3,500
without including a purge clause in the contempt order, thereby rendering the order
punitive rather than remedial.” She asserts that a purge clause is “essential as it
provides the contemnor with a clear path to comply with the order and avoid further
sanctions.” In reply, Jacobs contends that the award of fees was proper under
RCW 26.09.160, which authorizes an award of reasonable attorney fees to the
aggrieved party who prevails on a contempt motion. Jacobs also contends that a
purge clause was not required because the commissioner’s award was intended
to compensate him for the time and expense incurred while pursuing the contempt
motion against McArthur. 4
Attorney fees in contempt actions are authorized under RCW 26.09.160.
We review a fee award for abuse of discretion when awarded pursuant to a statute.
Bay v. Jensen, 147 Wn. App. 641, 659, 196 P.3d 753 (2008). “The party
challenging the award must show the court used its discretion in an untenable or
manifestly unreasonable manner.” Id. McArthur devotes a significant portion of
her briefing on this issue to the purge clause and references subsequent
4 Contrary to McArthur’s argument on this issue, the contempt order she appeals does, in
fact, contain a purge clause. Section 11 of the order expressly states that: Contempt can be corrected (purged) if: . . . Gale E. McArthur does the following . . .: Refrains from posting anything further on the child’s social media pages about the Petitioner or the case and refrains from making any further derogatory comments to and against the Petitioner.
-8- No. 85747-9-I/9
proceedings on reconsideration and revision. However, those hearings and
decisions are outside the scope of our review as the orders were not designated
in McArthur’s October 4, 2023 amended notice of appeal. More critically, she
appears to assert that the absence of a purge clause renders the fee award
improper, but also notes that
RCW 7.21.030[] permits the imposition of remedial sanctions, including attorney’s fees, only if a valid finding of contempt has been made. Remedial sanctions are intended to be coercive, designed to compel compliance with a court order.
This is an accurate statement of the law. However, the court’s fee award here was
not based on RCW 7.21.030. Review of the report of proceedings makes clear
that the commissioner expressly declined to award fees as a sanction for
McArthur’s contempt. As such, a purge condition was not required.
The award of attorney fees was simply based on the plain language of RCW
26.09.160(2)(b)(ii) which states in relevant part, “Upon a finding of contempt, the
court shall order . . . [t]he parent to pay, to the moving party, all court costs and
reasonable attorneys’ fees incurred as a result of the noncompliance.” (Emphasis
added.) The court found McArthur in contempt. The unambiguous language of
the statute required an award of attorney fees to Jacobs as the moving party. The
trial court did not err when it ordered McArthur to pay the attorney fees Jacobs
incurred as a result of bringing the motion for contempt.
IV. Attorney Fees on Appeal
Jacobs seeks an award of attorney fees on appeal and properly both
provides authority and devotes a portion of his briefing to his request as required
-9- No. 85747-9-I/10
by RAP 18.1(b). He offers Rideout for the proposition that “a party is entitled to an
award of attorney fees on appeal to the extent the fees relate to the issue of
contempt.” 150 Wn.2d at 359. In Rideout, our Supreme Court read RCW
26.09.160(2)(b)(ii) as authorizing an award of attorney fees on appeal because
they are included under “‘all court costs and reasonable attorney fees incurred as
a result of the noncompliance.’” Id. at 358 (emphasis omitted) (quoting RCW
26.09.160(b)(ii)). Thus, Jacobs is entitled to attorney fees on appeal, subject to
his compliance with the procedural requirements under RAP 18.1.
Affirmed. 5
WE CONCUR:
5 McArthur attempts to supplement the record on appeal by appending various documents
to her briefing, contrary to RAP 10.3(a)(8) and without seeking permission of the court as required by RAP 9.11(a). Further, her reply brief argues a number of matters not presently before this court. We decline to consider materials or argument outside the scope of appeal as established by the notice of appeal and assignments of error.
- 10 -