Kathryn Violet Buss, V. Lee James Buss

• Court: Court of Appeals of Washington
• Decided: January 20, 2026
• Docket: 87462-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of No. 87462-4-I KATHRYN VIOLET BUSS, DIVISION ONE Respondent, UNPUBLISHED OPINION and

LEE JAMES BUSS,

Appellant.

BIRK, J. — Lee Buss appeals an order that found him in contempt and

awarded attorney fees to his former spouse, Kathryn Buss.1 We reverse the

contempt order solely to the extent that it awarded fees incurred in connection with

Lee’s bankruptcy proceeding, and we remand to the trial court to enter a revised

order that limits the award of fees to those incurred in connection with state-level

proceedings. Otherwise, we affirm.

I

Lee and Kathryn married in 2005 and separated in March 2019. They share

a child, J.B., who has special needs. The trial court entered a final parenting plan

in November 2020.

1 We refer to the parties by their first names for clarity. We intend no disrespect. No. 87462-4-I/2

Around March 2021, Kathryn relocated with J.B. to Oregon. She petitioned

to modify the parenting plan, the matter went to trial, and on June 6, 2023, the trial

court entered final orders. In its final relocation order, the court entered judgment

in Kathryn’s favor for $62,786.94 in attorney fees and $1,250.00 in guardian ad

litem (GAL) fees (June 2023 judgment). In support of the fee award, the court

found that “the procedural actions made by [Lee] in this case led to [Kathryn]

incurring legal fees. The court finds these action[s] were made in bad faith. [Lee]

has an ability to pay and [Kathryn] does not.” (Some capitalization omitted.) Later,

the court entered a revised judgment adding fees awarded in connection with Lee’s

motion for reconsideration (August 2023 judgment).

On October 27, 2023, the trial court entered an order finding Lee in

contempt for failing to comply with a June 9, 2023 order that directed him not to

engage in excessive and abusive communications with J.B.’s providers. The

contempt order included a judgment awarding Kathryn $7,210.00 in attorney fees

(October 2023 judgment). Both the August 2023 judgment and the October 2023

judgment contain similar statements that “Lee . . . shall pay any collection costs

including, but not limited to, any and all collection attorney and/or collection agency

fees incurred to collect payment of the Judgment if the Judgment amount is not

satisfied within thirty days of this order.”

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On November 20, 2023, Lee filed a Chapter 13 bankruptcy petition. Kathryn

retained counsel to represent her in Lee’s bankruptcy, including by litigating

whether her judgments against Lee were dischargeable. The bankruptcy court

dismissed Lee’s case without prejudice in July 2024.

On September 25, 2024, Kathryn moved to hold Lee in contempt for not

paying the August 2023 and October 2023 judgments. The trial court ordered Lee

to show cause, and on October 21, 2024, it held a hearing on Kathryn’s motion.

The court inquired about “what payment, if any, [Lee] has . . . made toward his

obligations and the judgments that are outstanding against him? Even in the last

six months, . . . because I am not seeing within the case file that there’s been any

payments.” In response, Lee did not dispute that he had made no payments

toward the judgments.

The trial court was “not convinced at this point that . . . Lee . . . is unable to

pay.” It found that “although [Lee] has undergone some financial difficulties and

did explore his options available in and through bankruptcy, bankruptcy is no

longer filed or pending,” and “as much as [Lee] has given this Court some

explanation as to . . . why he has not made any type of monetary payment towards

his outstanding judgments . . . , this Court will be granting and finding that the order

for today’s contempt hearing will be entered . . . in the amount as presented by

[Kathryn].” The trial court entered a written order finding Lee in contempt for failing

to obey the August 2023 and October 2023 judgments. It also found that “Lee . . .

had the ability to repay the debt as ordered and chose not to,” that Lee acted in

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bad faith, and that “Lee . . . has the ability to follow the orders, but is not willing to.”

In support of its bad faith finding, the trial court explained,

At trial in May 2023, the court found that Lee . . . acted intentionally and in bad faith during the custody action (Dec 2020-October 2023), causing [Kathryn] to incur legal fees. The court ruled that Lee . . . has the ability to pay, while [Kathryn] does not. Despite this, Lee . . . refuses to repay the debt as ordered and has actively worked against [Kathryn]’s attempts to collect, demonstrating further bad faith.

The trial court awarded Kathryn $15,448.08 in attorney fees. It also stated that

Lee could purge contempt by paying at least one percent of the $100,497.64 owed

before a November 21 review hearing.

Lee appeals.

II

As an initial matter, failure to pay a money judgment must generally be

remedied by execution or garnishment and not through contempt. See RCW

6.17.070 (judgment for “the payment of money or the delivery of real or personal

property” may be enforced by execution; judgment requiring “the performance of

any other act” may be enforced through contempt); RCW 6.27.020(1) (authorizing

court clerks to “issue writs of garnishment returnable to their respective courts for

the benefit of a judgment creditor who has a judgment wholly or partially

unsatisfied”).

Enforcement through contempt is authorized for failure to comply with a

“support or maintenance order,” RCW 26.18.050(1), meaning a “judgment, decree,

or order of support or maintenance.” RCW 26.18.020(16). However, the August

2023 and October 2023 judgments at issue here were not support or maintenance

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orders within the meaning of RCW 26.08.050(1). The August 2023 judgment

evidenced a debt for fees awarded in connection with a parenting plan modification

where support was not at issue. And the October 2023 judgment evidenced a debt

for fees awarded in a contempt proceeding where the underlying noncompliance

was unrelated to maintenance or support. Accordingly, it appears these judgments

were not enforceable through contempt.

Nevertheless, Lee did not assert in the trial court, nor does he assert on

appeal, that the trial court could not use its contempt power to remedy Lee’s failure

to pay the at-issue judgments. To the contrary, Lee and his counsel framed Lee’s

arguments under Washington’s contempt statute, arguing that because Lee

demonstrated his inability to pay, he had an affirmative defense to contempt.

Accordingly, we conclude that to the extent the trial court erred by exercising its

contempt power to enforce the at-issue judgments, Lee invited that error. See In

re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) (under invited

error doctrine, court “will deem an error waived if the party asserting such error

materially contributed thereto”). We turn to Lee’s arguments.

III

Lee argues that the trial court erred by finding that he had and has the ability

to pay and failed to do so in bad faith. Thus, he contends, the trial court erred by

finding contempt. We disagree.

“Contempt” means, as relevant here, “intentional . . . [d]isobedience of any

lawful judgment, decree, or process of the court.” RCW 7.21.010(1)(b). “If the

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court finds that [a] person has failed or refused to perform an act that is yet within

the person’s power to perform, the court may find the person in contempt” and

impose a remedial sanction, including “[a]n order designed to ensure compliance

with a prior order of the court.” RCW 7.21.030(2)(c). In the context of civil

contempt, “ ‘the law presumes that one is capable of performing those actions

required by the court . . . [and the] inability to comply is an affirmative defense.’ ”

Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995) (alterations in

original) (quoting King v. Dep’t of Soc. & Health Servs., 110 Wn.2d 793, 804, 756

P.2d 1303 (1988)). We review a contempt order under RCW 7.21.010 for abuse

of discretion. Id. “An abuse of discretion is present only if there is a clear showing

that the exercise of discretion was manifestly unreasonable, based on untenable

grounds, or based on untenable reasons.” Id.

Here, the trial court had a tenable basis to find that Lee had and has the

ability to pay. It was undisputed that Lee lost his job in July 2024 and was collecting

unemployment and disability at the time of the contempt hearing. And Lee claimed

that after rent, utilities, health insurance, and child support, he had less than

$600.00 per month to cover all of his other expenses. Yet according to Lee’s own

declaration, he had paid more than $80,000.00 to his attorneys since the time the

June 2023 judgment was entered.2 This included more than $12,000.00 in just the

2 Lee declared that he paid approximately $60,057.74 in attorney fees from

June 2023 to November 2023. He also declared that he incurred approximately $14,155.23 in attorney fees from November 2023 until July 2024, and that he still owed, $4,371.56, so it was reasonable for the trial court to infer that Lee paid

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few months leading up to the contempt hearing. The trial court did not abuse its

discretion by finding that Lee had and has an ability to pay the outstanding

judgments, at least to some degree.

The trial court also did not abuse its discretion by finding that Lee acted in

bad faith based on his “refus[al] to repay the debt as ordered” and his “actively

work[ing] against [Kathryn’s] attempts to collect.” Lee has a history, as previously

found by the trial court, of engaging in abusive use of conflict on numerous

occasions and conducting bad faith litigation that caused Kathryn—the full-time

caregiver to the parties’ special-needs child—to incur the legal fees that constitute

the bulk of Kathryn’s judgments. Lee had the ability, as discussed, to pay those

judgments to some degree. Yet, as the trial court put it, “[t]here’s been no showing

of even a gesture of payment to show that he is making an effort.” When asked to

explain this total lack of effort, Lee made a specious argument that he could

continue not paying because he intended to re-file for bankruptcy at some

unspecified point in the future. Lee’s failure to provide a reasonable justification

for not devoting any of his resources to the judgments supports a finding of bad

faith. In any case, even if the record did not support the trial court’s bad faith

finding, reversal would not be required: A court need not find bad faith to support

a contempt finding or impose remedial sanctions under the general contempt

$9,783.67 in attorney fees during that period. And, Lee declared that from July 2024 to October 2024, he incurred $13,264.68 in attorney fees and $1,140.00 of that amount had not been paid, meaning it was reasonable to infer that Lee paid $12,124.68 in attorney fees during that period.

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statute. See RCW 7.21.010(1), .030(2); cf. RCW 26.09.160(2)(b) (requiring bad

faith finding to support contempt for failure to comply with certain family law

orders).

As a final matter, the record reflects Lee’s representation that on November

20, 2024, Lee purged his contempt by paying one percent of the outstanding debt

before the date set by the trial court for the next review hearing.3 Based on Lee’s

representation, we cannot provide Lee any further relief with regard to the

contempt finding. Cf. In re Interest of M.B., 101 Wn. App. 425, 432, 3 P.3d 780

(2000) (issues raised on appeal were moot because at the time of the appeal, the

appellants had purged or served the term of their contempt sanctions). For this

reason and for the reasons discussed above, Lee does not establish a basis for

appellate relief from the contempt finding or from the remedial sanction imposed

therefor.4

IV

Lee next assigns error to the trial court’s finding that the debt evidenced by

Kathryn’s judgments was “in the nature of support.” We review a trial court’s

findings for substantial evidence, meaning evidence sufficient to convince a

3 Lee does not request much less demonstrate any entitlement to a refund.

However, he is entitled to a partial satisfaction of judgment to reflect any payment. 4 Lee points out that the trial court’s written order found that he failed to pay

not only the August 2023 and October 2023 judgments, but also the June 2023 judgment, which had been revised by the August 2023 judgment, and the judgment for attorney fees that was awarded in the order itself. For these same reasons, reversal to correct these apparent clerical errors is not required.

8 No. 87462-4-I/9

rational, fair-minded person that the finding is true. Sunnyside Valley Irrig. Dist. v.

Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).

The trial court found that the debt was in the nature of support because the

judgments represented “real costs paid by Kathryn . . . in child-centered custody

litigation to which the welfare of the child was central,” and “[t]he monies addressed

by this judgment would otherwise have gone to the support of the child.”

Substantial evidence supports these findings. The record reflects that J.B.’s

welfare was central to the parenting plan modification proceeding from which the

underlying debt arose. Kathryn declared that the debt “represents real costs that

[she had] paid,” and Lee’s failure to pay the debt “has exacerbated [her] financial

distress, including [her] ability to support [her]self and [the parties’] severely

disabled child, for whom [she had] sole responsibility.” Although the at-issue

judgments do not fall within the statutory definition of “support or maintenance

orders” for reasons already discussed, we discern no error in the trial court’s

determination, as a factual matter, that they were in the nature of support.

V

A

Lee next challenges the trial court’s award of fees to Kathryn. He contends

that the trial court lacked subject matter jurisdiction to award fees incurred in

connection with his bankruptcy proceeding. Lee raises this issue for the first time

on appeal, and although we may review it under RAP 2.5(a)(1), he fails to provide

adequate briefing on the issue. “A superior court, as a court of general jurisdiction,

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is presumed to act within its authority absent an affirmative showing to the

contrary.” State v. Hawkins, 164 Wn. App. 705, 712, 265 P.3d 185 (2011). Lee

does not provide any analysis to support this showing.

Nonetheless, we agree with Lee that, as he argued in the trial court, the trial

court lacked authority to award Kathryn the fees she incurred in connection with

his bankruptcy proceeding. “In Washington, attorney fees may be awarded when

authorized by a contract, a statute, or a recognized ground in equity.” Kaintz v.

PLG, Inc., 147 Wn. App. 782, 785, 197 P.3d 710 (2008). “Whether a specific

statute, contractual provision, or recognized ground in equity authorizes an award

of fees is a question of law and is reviewed de novo.” Id. at 785-86.

The trial court did not specify the basis for its attorney fee award. Kathryn

argues it was authorized by RCW 7.21.030 or RCW 26.18.160. RCW 7.21.030(3)

provides that a court may, upon a finding of contempt, “order a person found in

contempt of court to pay a party for . . . any costs incurred in connection with the

contempt proceeding, including reasonable attorney’s fees.” (Emphasis added.)

But fees incurred in connection with Lee’s bankruptcy were not incurred “in

connection with the contempt proceeding.” RCW 26.18.160 states, “In any action

to enforce a support or maintenance order under this chapter, the prevailing party

is entitled to a recovery of costs, including an award of reasonable attorney fees.”

(Emphasis added.) But as discussed, the at-issue judgments were not “support or

maintenance orders” under chapter 26.18 RCW. Similarly, fees were not

recoverable under RCW 26.09.140, the general family law attorney fee statute,

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which authorizes a fee award for “maintaining or defending any proceeding under

this chapter.” (Emphasis added.)

Finally, Kathryn points to the language in the August 2023 and October

2023 judgments directing Lee to pay “collection attorney and/or collection agency

fees incurred to collect payment of the Judgment.” But Kathryn cited no authority

in the trial court for the proposition that when entering the judgments, the court

would have been authorized to prospectively award fees beyond those authorized

by law, much less that fees incurred to litigate the characterization of her

judgments under federal bankruptcy law are fees incurred to collect payment. Cf.

Nw. Cascade, Inc. v. Unique Constr., Inc., 187 Wn. App. 685, 704, 351 P.3d 172

(2015) (fees incurred to quash homestead declaration were recoverable under

contract’s fee provision for “collection proceedings” where executing on the

debtor’s real property in state law enforcement proceeding required litigating the

claimed homestead exemption). For the foregoing reasons, the trial court erred by

awarding Kathryn fees she incurred in connection with Lee’s bankruptcy

proceeding.

B

Lee also argues that some of the non-bankruptcy-related fees that Kathryn

incurred to enforce her judgments are not recoverable under state law. But in the

trial court, Lee argued only that the fees incurred in connection with his bankruptcy

were nonrecoverable. He did not further argue that Kathryn was not entitled to any

portion of the fees she incurred in connection with state-level enforcement

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proceedings. Therefore, this argument is waived. See RAP 2.5(a) (“The appellate

court may refuse to review any claim of error which was not raised in the trial

court.”).

VI

We reverse to the extent that the trial court awarded fees that Kathryn

incurred in connection with Lee’s bankruptcy proceeding, and we remand to the

trial court to enter a revised order limiting its award of fees to those incurred in

connection with state-level proceedings. Otherwise, we affirm.5

WE CONCUR:

5 Kathryn requests a variety of affirmative relief in her respondent’s brief.

Her request for costs should be directed to a commissioner or court clerk as provided in Title 14 RAP. Her other requests for affirmative relief, including an award of fees on appeal, are hereby denied.