IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) ) DIVISION ONE col ct ARADHNA FORREST (f/k/a Luthra), ) T1
) No. 74034-2-1 Cr) Ci- a Respondent, ) (consol. with No. 74735-5-1, ) No. 75135-2-1, and -t-; rri and ) No. 75395-9-1) r"- ) 1/!4 ? G) (11 VIKAS LUTHRA, ) UNPUBLISHED OPINION N.) ) Appellant. ) FILED: February 6, 2017 )
DWYER, J. — Vikas Luthra appeals from consecutive contempt orders
entered against him during litigation to enforce portions of a parenting plan and a
child support order. Luthra contends that the trial court erred by holding him in
contempt for not paying child support, by imposing sanctions against him for not
acting in compliance with the parenting plan, and by awarding attorney fees
against him. Ample evidence supports the trial court's factual findings and the
contempt sanctions were well within its discretion. We affirm.
The procedural history of this case is lengthy and complex and is
summarized here only as necessary to address issues properly raised in this No. 74034-2-1/2
appeal. In 2010, upon the dissolution of Luthra and Aradhna Forrest's marriage,
the trial court entered a child support order and a parenting plan after a lengthy
trial. Pursuant to these orders, Luthra was to make regular child support
payments and obtain intense home-based treatment for his severe obsessive
compulsive disorder (OCD). The trial court found that Luthra's OCD "constitutes
an emotional impairment that interferes with the father's performance of
parenting functions under RCW 26.09.191(3)(b)." Based on the evidence at trial,
the trial court specifically required intensive home-based OCD therapy.
Luthra paid some, but not all, of the ordered child support, refusing to pay
the portion of his transfer payment related to childcare expenses. Although the
plain language of the child support order required Luthra to pay a fixed amount
for childcare as part of his regular transfer payment, Luthra professed a belief
that he was only required to make childcare payments if Forrest gave him
advance notice and the opportunity to preapprove such expenses. During
litigation in 2013, the trial court entered as an order an amended final parenting
plan to resolve issues that Luthra and Forrest identified as being in need of
determination. The trial court directly addressed Luthra's professed confusion
regarding childcare payments by including a provision in the amended final
parenting plan specifically reiterating that Luthra's child support obligation
included a monthly amount for childcare, as set forth in the order of child support,
and did not require preapproval.1
1 Section 6.14 of the amended final parenting plan dated September 9, 2013 reads in pertinent part: "Financial Obligations. Neither parent shall financially obligate the other parent for any expense related to the child without the written consent of the other parent, with the
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Luthra also never engaged in the ordered intensive home-based OCD
treatment, prompting Forrest to bring contempt proceedings in July of 2015.
Between July 23, 2015 and June 3, 2016, the trial court held seven hearings in
which it admonished Luthra to begin complying with the court's orders or face
sanctions for contempt. Luthra continued to fail to comply, leading the trial court
to impose increasingly coercive sanctions against him, including financial
penalties and assignment to work crew. Luthra appeals all of the orders
stemming from those hearings.2
II
We review contempt orders for an abuse of discretion. In re Pers.
Restraint of King, 110 Wn.2d 793, 798, 756 P.2d 1303 (1988). Discretion is
abused if the court's decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47,
940 P.2d 1362 (1997). A court's decision is manifestly unreasonable if its
decision is outside the range of acceptable choices; it is based on untenable
grounds if the factual findings are unsupported by the record; it is based on
untenable reasons if it is based on an incorrect legal standard. Littlefield, 133
Wn.2d at 47.
exception of the cost of daycare (selected by the mother) which expense is addressed in paragraph 3.15 of the Order of Child Support." 2 Although Luthra, in blanket fashion, appeals every order entered during the contempt proceedings, we do not address all of them. We do not address his appeal from the order on civil motion entered on October 25, 2015 and from the order on third contempt review hearing entered on March 18, 2016 because Luthra did not appeal those orders within the time provided in RAP 5.2(a). Similarly, we do not address claims related to the trial court's findings in the 2010 parenting plan order and child support order as those orders became final years ago. Finally, we do not address any of Luthra's arguments raised for the first time in his reply brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (a reviewing court need not address claims raised for the first time in a reply brief).
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It is "axiomatic that a court must be able to enforce its orders." In re
Interest of M.B., 101 Wn. App. 425, 431, 3 P.3d 780 (2000). An "order of the
court must be obeyed implicitly, according to its spirit, and in good faith."
Blakiston v. Osgood Panel & Veneer Co., 173 Wash. 435, 438, 23 P.2d 397
(1933). When a parent does not make court ordered child support payments or
refuses to comply with a parenting plan, RCW 26.18.050 authorizes the
aggrieved party to initiate proceedings under chapter 7.21 RCW, the contempt of
court statute, in order to enforce compliance with the court's order. Contempt of
court is the "intentional. . . [d]isobedience of any lawful judgment, decree, order,
or process of the court." RCW 7.21.010(1)(b). A trial court must make findings
of fact setting forth the basis for its judgment of contempt, State ex rel. Dunn v.
Plese, 134 Wash. 443, 447-48, 235 P. 961 (1925), including findings of "bad faith
or intentional misconduct." In re Marriage of James, 79 Wn. App. 436, 440, 903
P.2d 470 (1995). A trial court may then impose sanctions against the
noncompliant parent which may include the payment of any losses suffered by
the aggrieved party in connection with the contempt proceedings and reasonable
attorney fees. RCW 7.21.030.
A
Contempt of Child Support Order
Luthra's monthly child support obligation was set forth in the trial court's
order of child support dated July 8, 2010. Luthra was to make regular child
support payments in the amount of $700 per month. The monthly transfer
payment was based on a detailed breakdown attached to the court's order. That
4 No. 74034-2-1/5
order included, as part of the $700 monthly obligation, a fixed sum for childcare
in the amount of $166.3
Luthra regularly paid only a portion of the ordered child support. He never
paid the required portion of the transfer payment related to childcare expenses
between the date on which the 2010 order was entered and the August 19, 2015
contempt hearing, accumulating $10,900 in past due child support. After notice
and a hearing, the trial court found Luthra in contempt and entered a monetary
judgment against him. The total judgment amount was determined by adding the
amount of the past due child support, interest on the unpaid sum, and an amount
for attorney fees incurred by Forrest in bringing enforcement proceedings.
Luthra does not contend that the 2010 child support order was unlawful or
that he was unaware of it. Neither did he appeal it. Rather, Luthra asserts that
his noncompliance was not willful. This is so, Luthra avers, because the portion
of the child support payment covering childcare expenses required preapproval
and mandatory referral to dispute resolution, which did not occur. Alternatively,
he argues that his noncompliance was not willful because he was financially
insolvent. Both claims fail.
Luthra's contention that the unpaid childcare expenses required
preapproval, with any disputes referred to mandatory dispute resolution, is
wrong. The child support order provision that he references explicitly applies
only to childcare expenses in excess of the regular monthly amount, listed as
3 Monthly daycare costs were set at $322 per month, of which Luthra's share was one half, or $166.
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$166 per month. In fact, in bringing her motion, Forrest specifically refrained
from seeking a contempt finding relating to the string of unmade payments for
sums in excess of the $166 monthly transfer payment. Rather, her motion was
confined solely to Luthra's failure to make payments of the basic obligation
amount. Furthermore, in a2013 proceeding, the trial court specifically reiterated
that regular childcare expenses not in excess of $166 were not subject to the
preapproval or dispute resolution provisions and were therefore part of Luthra's
standard monthly child support obligation. Luthra was plainly made aware of his
obligation and the trial court, in the contempt proceedings at issue, properly ruled
that he had willfully not complied.
Alternatively, Luthra asserts that his failure to make court ordered child
support payments was not willful because he lacked the financial means to
comply. RCW 26.18.050(4) requires a child support obligor who contends that
he or she lacks the financial means to comply to "establish that he or she
exercised due diligence in seeking employment, in conserving assets, or
otherwise in rendering himself or herself able to comply with the court's order."
Luthra made no such showing.
Although Luthra contends that he did not have the financial means to
make the transfer payment, he failed to provide any evidence, other than bare
assertions, to support this claim. He provided no detailed financial records or
declarations to support his claimed insolvency.4 The trial court found Luthra's
4 At the August 19, 2015 hearing, Luthra's counsel admitted that he had not provided any new financial declarations or evidence other than those submitted in 2010. Luthra still had not provided the necessary financial information five hearings later, as of May 17, 2016. Additionally,
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evidence unconvincing and his testimony untrustworthy. Indeed, Luthra failed to
rebut assertions that his business was thriving and that his financial situation was
stable. Accordingly, there was ample evidence to support the trial court's
determination that Luthra willfully violated the child support order.
Luthra makes a conclusory claim that the sanctions entered against him
for refusing to make the child support payments constituted an abuse of
discretion. Again, we disagree.
RCW 26.18.050 specifically authorizes entry of a contempt order to
enforce a child support obligation until the obligor has satisfied all duties of
support, including amounts in arrears. Similarly, RCW 7.21.030 and RCW
26.09.160 authorize the court to order a party found in contempt to pay the
aggrieved party for any losses incurred in connection with the enforcement
proceedings. Here, the trial court's contempt order required Luthra to pay his
past due child support, pay interest on that sum, and pay attorney fees incurred
by Forrest—all remedies well within the range of acceptable choices. Littlefield,
133 Wn.2d at 47. There was no abuse of discretion.
Contempt of Parenting Plan Order
In its 2010 parenting plan order, the trial court found that Luthra's OCD
"constitutes an emotional impairment that interferes with the father's performance
of parenting functions under RCW 26.09.191(3)(b)." The trial court found that
Forrest pointed to Luthra's late model luxury cars, expensive vacations, and recent remodel to his house as evidence tending to negate his claim of financial distress.
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Luthra's OCD manifestations were most severely, pronounced at his home. 5
Therefore, the court specifically ordered Luthra to obtain intensive home-based
OCD therapy with a provider approved by the court.
Luthra did not obtain intensive home-based OCD treatment between the
time the parenting plan was entered and the contempt proceeding on August 19,
2015. Instead, he participated in occasional non-home-based treatment. The
trial court found that Luthra was not in compliance with the parenting plan and
sanctioned him with 30 days of work crew assignment. The trial court increased
his work crew assignment by another 30 days after he continued to not comply a
few months later and subsequently imposed a further 15 days after he again did
not comply. Luthra was also ordered to pay attorney fees incurred by Forrest in
bringing enforcement proceedings.
Luthra contends that his noncompliance was not willful. This is so, he
asserts, because the court ordered therapy is not covered by his insurance and
there is no treatment provider capable of performing home-based treatment in
the Seattle area. He avers that his alternative OCD treatment regimen,
therefore, satisfies the court's order. None of his contentions have merit.
Luthra's arguments challenge the trial court's original findings of fact
entered in 2010. Luthra did not seek timely review of the 2010 factual findings
and cannot do so now. Detonics ".45" Assocs. v. Bank of Cal., 97 Wn.2d 351,
353, 644 P.2d 1170 (1982). The trial court entertained evidence in 2010 and
5 The trial court found that Luthra's OCD requires him to participate in lengthy "cleansing rituals" when family members enter his home or touch certain surfaces. The trial court found that this impairment was serious and had an adverse impact on the child's best interests.
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again in 2015 regarding the necessity and availability of the ordered home-based
treatment. The trial court found that it was available and ruled that it was
mandatory. Indeed, during the 2015 contempt proceedings, the court had
evidence before it that, contrary to Luthra's assertions, home-based therapy was
provided by at least one local therapist in Luthra's insurance network.
Furthermore, the court made clear that participating in the ordered treatment was
not in any way contingent on insurance eligibility.
The trial court did not credit Luthra's claim that his current OCD treatment
was in compliance with the order. There was evidence that this treatment was
the same kind of treatment that he was engaged in at the time of the 2010
dissolution proceeding. During that proceeding, the trial court considered
evidence from Luthra's doctor stating that Luthra needed more intense treatment
than she could provide. For this and other reasons, the court in 2010 found his
desired treatment regimen insufficient and specifically ordered the treatment set
forth in its order. During the recent enforcement proceedings, the trial court
again found that the treatment Luthra preferred did not satisfy the orders. Luthra
had over five years to begin the necessary treatment with a court approved
provider. Given Luthra's recalcitrance with regard to the trial court's order, there
was ample evidence to support the trial court's finding of willful noncompliance.
Luthra next challenges his assignment to work crew, contending that this
sanction was an abuse of discretion. This is so, he asserts, because it violated
his right to be free from double jeopardy. This claim fails.
9 No. 74034-2-1/10
Contempt sanctions may be either civil or criminal. To determine whether
a sanction is civil or criminal, we examine whether the sanction is coercive or
punitive. M.B., 101 Wn. App. at 439. A sanction "remains coercive, and
therefore civil, if the contemnor is able to purge the contempt and obtain his
release by committing an affirmative act." M.B., 101 Wn. App. at 439. "For
double jeopardy to apply, the accused must have been subjected to two punitive
proceedings." State v. Buckley, 83 Wn. App. 707, 713, 924 P.2d 40 (1996).
Here, the trial court sanctioned Luthra pursuant to RCW 7.21.030, which
authorizes a broad array of remedial sanctions, including imprisonment. The
ordered sanctions were civil—Luthra needed only to participate in the ordered
treatment program to purge himself of contempt and avoid further contempt
sanctions.
However, Luthra failed to perform this volitional act for over six years. The
trial court first sanctioned Luthra with 30 days of work crew assignment on
October 20, 2015. Luthra completed some of the work crew but still did not begin
OCD treatment, leading the court, at the next hearing, to sanction him with 30
additional days of work crew. Some weeks later, the court again sanctioned him
with an additional 15 day assignment after he persisted in noncompliance. The
fact that the sanctions were entered for a determinate number of days does not
render them punitive. M.B., 101 Wn. App. at 439. The trial court characterized
these sanctions as motivating and concluded each hearing by delineating
specifically what Luthra must do in order to purge his contempt. Luthra could
have purged the entire work crew assignment by beginning and completing the
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ordered treatment. Accordingly, these sanctions did not constitute a violation of
Luthra's right to be free from double jeopardy.
Luthra further argues that the contempt sanctions violated his Eighth
Amendment right to be free from cruel and unusual punishment.6 Again Luthra's
claim lacks merit.
The Eighth Amendment, like constitutional double jeopardy protections,
applies to criminal but not civil contempt sanctions. See Ingraham v. Wright, 430
U.S. 651, 667-68, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (holding that the
Eighth Amendment does not apply outside the criminal context). As the
sanctions here are civil in nature, the Eighth Amendment is not implicated.
The trial court took pains to avoid incarcerating Luthra, despite the court's
admission that it was running out of options to motivate him. The court
repeatedly warned him that failure to comply would result in a jail term. The trial
court crafted a contempt order, in careful consideration of RCW 7.21.030 and
imposed work crew assignment to motivate Luthra to begin home-based OCD
treatment. These sanctions were clearly coercive, and therefore civil. Given the
record before it, the sanctions ordered by the trial court were well within the
range of acceptable choices and, therefore, not an abuse of discretion.
Littlefield, 133 Wn.2d at 47.
6 At various times in his briefing, Luthra references other constitutional principles. He never properly develops or presents these claims. "[Naked castings into the constitutional sea are not sufficient to command judicial consideration and discussion." State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (internal quotation marks omitted) (quoting In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986)). No. 74034-2-1/12
Luthra next claims that the trial court abused its discretion by ordering him
to pay attorney fees incurred by Forrest during four of the enforcement
proceedings. We disagree.
An award of attorney fees is within the trial court's discretion and will be
upheld unless there is a manifest abuse of that discretion. In re Marriage of
Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996). Pursuant to RCW
7.21.030, the trial court may order the payment of any losses incurred by the
aggrieved party in bringing enforcement proceedings, including attorney fees, as
a remedial measure. See McFerran v. McFerran, 55 Wn.2d 471, 473-75, 348
P.2d 222 (1960) (upholding a trial court's award of attorney fees incurred by a
wife in connection with her motion to enforce an order of support).
Furthermore, RCW 26.09.160 provides that:
An 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, to condition payment of child support upon an aspect of the parenting plan, to refuse to pay ordered child support, to refuse to perform the duties provided in the parenting plan, 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.
RCW 26.09.160(1) (emphasis added).
This court has held that once the trial court has found a parent in contempt
under RCW 26.09.160, it must award reasonable attorney fees and expenses
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incurred by the aggrieved party in bringing enforcement proceedings. In re
Marriage of Myers, 123 Wn. App. 889, 894, 99 P.3d 398 (2004).
Here, the trial court, after finding Luthra in contempt, reviewed the attorney
fee declarations submitted by Forrest's counsel and found them "more than
reasonable." The trial court stated in each order the amount and basis for the
awards. Luthra fails to point to any way in which the fee awards were excessive
or otherwise unreasonable. Accordingly, there was no abuse of discretion.
Finally, Forrest requests an award of appellate attorney fees based on the
filing of a frivolous appeal or intransigence in this, court, pursuant to RAP 18.9.
We decline to award attorney fees on these grounds. However, an award of
attorney fees for expenses incurred in responding to Luthra's appeal of the trial
court's contempt orders is warranted. See In re Marriage of Mattson, 95 Wn.
App. 592, 606, 976 P.2d 157 (1999). Not to award fees to Forrest would be to
diminish the remedial effect of the remedies provided to her by the trial court. It
would also disincentivize parties from litigating for appellate affirmance of
contempt orders. Accordingly, we award Forrest attorney fees reasonably
incurred in responding to Luthra's appeal of the trial court's contempt orders.
Upon compliance with RAP 18.1(d), a commissioner of this court will enter an
appropriate order.
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Affirmed.
We concur:
ecx,
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