r-, (pc IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON rn 0 or-n-n .73 •
In the Matter of the Marriage of: ) c,, ) No. 76330-0-1 or"C ARADHNA FORREST (f/k/a Luthra), ) ) DIVISION ONE •e' Respondent, ) oco ) and ) ) VIKAS LUTHRA, ) UNPUBLISHED OPINION ) Appellant. ) FILED: April 23, 2018 )
BECKER, J. —Vikas Luthra appeals from a contempt order imposing jail
time for his noncompliance with provisions of a parenting plan. Ample evidence
supports the finding of contempt. Incarceration was an appropriate sanction. We
affirm.
Luthra's marriage to the respondent, Aradhna Forrest, was dissolved in
2010 after a five-day trial. The court entered detailed findings of fact. The court
determined that Luthra had obsessive-compulsive disorder(OCD)and that his
OCD manifestations were most severely pronounced at home. Luthra's failure to
adequately treat his OCD was adversely impacting the parties' son, then six
years old. The parenting plan included provisions requiring Luthra to engage in
Intensive, home-based therapy for his OCD" with a therapist "highly experienced No. 76330-0-1/2
In intensive OCD treatment." The court concluded that requiring this treatment
served the child's best interests. If Luthra could more effectively manage his
OCD,the child could "continue to have the regular presence of his father in his
life in a way that is healthy for him." An order to enforce the parenting plan,
entered on June 6, 2011, required Luthra to begin treatment within three months.
Luthra did not engage in the required therapy, prompting Forrest to bring
contempt proceedings against him in July 2015. See RCW 26.18.050;
RCW 26.09.160(1)-(2)(authorizing contempt proceedings against parent who
refuses to comply with parenting plan). The trial court ordered Luthra to develop
a plan to engage in intensive home-based OCD treatment. During a series of
subsequent review hearings, Luthra failed to convince the court that he was
receiving appropriate treatment. Between October 2015 and June 2016, the
court entered four contempt orders against him. The orders imposed
Increasingly coercive sanctions, including assignment to work crew. The trial
judge warned Luthra on numerous occasions that continued noncompliance
would result in incarceration.1 We affirmed the contempt orders in an
unpublished opinion.2
The present appeal arises from a review hearing on December 6, 2016.
During the hearing, Luthra, representing himself, told the judge that he was
1 See,u, Report of Proceedings(Aug. 19, 2015)at 27; Report of Proceedings(Oct. 20, 2015) at 41; Report of Proceedings (Jan. 13, 2016)at 30- 31; Report of Proceedings(Mar. 16, 2016) at 9; Report of Proceedings(May 17, 2016) at 22. 2 In re Marriage of Forrest, No. 74034-2-1, slip op. at 13(Wash. Ct. App. Feb. 6, 2017)(unpublished), http://www.courts.wa.gov/opinionsindf/740342.pdf. 2 No. 76330-0-1/3
participating in home-based therapy. He did not substantiate this claim. He
presented evidence that he had recently begun attending sessions with a
psychologist but provided minimal detail as to the nature of the treatment. He
told the court that the psychologist was "doing what is necessary for the
purposes of treating my OCD." The court found that Luthra had "partially
complied" with prior orders but that he remained in contempt. Luthra was
ordered to serve 10 days in the King County Correctional Facility. The court
suspended this sanction pending a review hearing in January 2017. The court
instructed Luthra that in advance of the next hearing, he should submit specific
information, outlined in the contempt order, concerning his current treatment
plan.
Luthra filed a notice of appeal in this court on January 11,2017, seeking
review of the December 2016 contempt order. Meanwhile, Luthra submitted to
the trial court a declaration from his psychologist in which the psychologist
expressed her opinion that Luthra did not require intensive home-based
treatment and she would therefore not provide it to him. After a hearing on
January 18, 2017, the court entered an order finding that Luthra had made "some
forward progress" by attending office sessions with the psychologist. But he had
not shown that the psychologist had expertise in OCD or that she was providing
the type of therapy required by the parenting plan. Thus, Luthra remained in
contempt. The court imposed a sanction of 2 days' incarceration, reduced from
the 10 days previously imposed.
3 No. 76330-0-1/4
Luthra filed an amended notice of appeal in this court, challenging the
sanction imposed on January 18 in addition to the December 2016 contempt
order. He claims that the contempt finding is not supported by the evidence and
the jail sanction exceeds the trial court's authority. We review challenges to a
contempt order for an abuse of discretion. In re Pers. Restraint of King, 110
Wn.2d 793, 798,756 P.2d 1303(1988). A trial court abuses its discretion by
exercising it on untenable grounds or for untenable reasons. In re Marriage of
James, 79 Wn. App. 436,440,903 P.2d 470(1995).
A contempt finding is warranted only if a party acted in bad faith or
committed Intentional misconduct. RCW 7.21.010(1)(b); James,79 Wn. App. at
441. Luthra contends that his failure to comply with the parenting plan was not
contumacious because he exercised "good faith due diligence" in attempting to
find a qualified provider.
The record adequately supports that Luthra's noncompliance was
Intentional. At various points below, the trial court entertained evidence and
argument concerning the availability and necessity of the treatment ordered in
the parenting plan, including arguments by Luthra that he could not find a
qualified provider. But Luthra provided little evidence to substantiate his alleged
efforts to comply. During the most recent hearings, in December 2016 and
January 2017, Luthra demonstrated that he was participating in non-home-based
therapy with a psychologist whose expertise in OCD was not established. He did
not show additional steps to comply with the parenting plan. He did not show
that the treatment ordered by the court was unavailable. In the absence of such
4 No. 76330-0-1/5
evidence, the trial court could reasonably determine that Luthra remained in
contempt.
Luthra contends that the trial court exceeded its authority by imposing jail
time as a sanction. We disagree.
The contempt statute authorizes both remedial and punitive sanctions.
RCW 7.21.050(1). "A remedial sanction is imposed for the purpose of coercing
performance when the contempt consists of failure to perform an act that is yet in
the person's power to perform." In re Interest of M.B., 101 Wn. App. 425,438,3
P.3d 780(2000), review denied 142 Wn.2d 1027(2001). Unlike punitive
Free access — add to your briefcase to read the full text and ask questions with AI
r-, (pc IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON rn 0 or-n-n .73 •
In the Matter of the Marriage of: ) c,, ) No. 76330-0-1 or"C ARADHNA FORREST (f/k/a Luthra), ) ) DIVISION ONE •e' Respondent, ) oco ) and ) ) VIKAS LUTHRA, ) UNPUBLISHED OPINION ) Appellant. ) FILED: April 23, 2018 )
BECKER, J. —Vikas Luthra appeals from a contempt order imposing jail
time for his noncompliance with provisions of a parenting plan. Ample evidence
supports the finding of contempt. Incarceration was an appropriate sanction. We
affirm.
Luthra's marriage to the respondent, Aradhna Forrest, was dissolved in
2010 after a five-day trial. The court entered detailed findings of fact. The court
determined that Luthra had obsessive-compulsive disorder(OCD)and that his
OCD manifestations were most severely pronounced at home. Luthra's failure to
adequately treat his OCD was adversely impacting the parties' son, then six
years old. The parenting plan included provisions requiring Luthra to engage in
Intensive, home-based therapy for his OCD" with a therapist "highly experienced No. 76330-0-1/2
In intensive OCD treatment." The court concluded that requiring this treatment
served the child's best interests. If Luthra could more effectively manage his
OCD,the child could "continue to have the regular presence of his father in his
life in a way that is healthy for him." An order to enforce the parenting plan,
entered on June 6, 2011, required Luthra to begin treatment within three months.
Luthra did not engage in the required therapy, prompting Forrest to bring
contempt proceedings against him in July 2015. See RCW 26.18.050;
RCW 26.09.160(1)-(2)(authorizing contempt proceedings against parent who
refuses to comply with parenting plan). The trial court ordered Luthra to develop
a plan to engage in intensive home-based OCD treatment. During a series of
subsequent review hearings, Luthra failed to convince the court that he was
receiving appropriate treatment. Between October 2015 and June 2016, the
court entered four contempt orders against him. The orders imposed
Increasingly coercive sanctions, including assignment to work crew. The trial
judge warned Luthra on numerous occasions that continued noncompliance
would result in incarceration.1 We affirmed the contempt orders in an
unpublished opinion.2
The present appeal arises from a review hearing on December 6, 2016.
During the hearing, Luthra, representing himself, told the judge that he was
1 See,u, Report of Proceedings(Aug. 19, 2015)at 27; Report of Proceedings(Oct. 20, 2015) at 41; Report of Proceedings (Jan. 13, 2016)at 30- 31; Report of Proceedings(Mar. 16, 2016) at 9; Report of Proceedings(May 17, 2016) at 22. 2 In re Marriage of Forrest, No. 74034-2-1, slip op. at 13(Wash. Ct. App. Feb. 6, 2017)(unpublished), http://www.courts.wa.gov/opinionsindf/740342.pdf. 2 No. 76330-0-1/3
participating in home-based therapy. He did not substantiate this claim. He
presented evidence that he had recently begun attending sessions with a
psychologist but provided minimal detail as to the nature of the treatment. He
told the court that the psychologist was "doing what is necessary for the
purposes of treating my OCD." The court found that Luthra had "partially
complied" with prior orders but that he remained in contempt. Luthra was
ordered to serve 10 days in the King County Correctional Facility. The court
suspended this sanction pending a review hearing in January 2017. The court
instructed Luthra that in advance of the next hearing, he should submit specific
information, outlined in the contempt order, concerning his current treatment
plan.
Luthra filed a notice of appeal in this court on January 11,2017, seeking
review of the December 2016 contempt order. Meanwhile, Luthra submitted to
the trial court a declaration from his psychologist in which the psychologist
expressed her opinion that Luthra did not require intensive home-based
treatment and she would therefore not provide it to him. After a hearing on
January 18, 2017, the court entered an order finding that Luthra had made "some
forward progress" by attending office sessions with the psychologist. But he had
not shown that the psychologist had expertise in OCD or that she was providing
the type of therapy required by the parenting plan. Thus, Luthra remained in
contempt. The court imposed a sanction of 2 days' incarceration, reduced from
the 10 days previously imposed.
3 No. 76330-0-1/4
Luthra filed an amended notice of appeal in this court, challenging the
sanction imposed on January 18 in addition to the December 2016 contempt
order. He claims that the contempt finding is not supported by the evidence and
the jail sanction exceeds the trial court's authority. We review challenges to a
contempt order for an abuse of discretion. In re Pers. Restraint of King, 110
Wn.2d 793, 798,756 P.2d 1303(1988). A trial court abuses its discretion by
exercising it on untenable grounds or for untenable reasons. In re Marriage of
James, 79 Wn. App. 436,440,903 P.2d 470(1995).
A contempt finding is warranted only if a party acted in bad faith or
committed Intentional misconduct. RCW 7.21.010(1)(b); James,79 Wn. App. at
441. Luthra contends that his failure to comply with the parenting plan was not
contumacious because he exercised "good faith due diligence" in attempting to
find a qualified provider.
The record adequately supports that Luthra's noncompliance was
Intentional. At various points below, the trial court entertained evidence and
argument concerning the availability and necessity of the treatment ordered in
the parenting plan, including arguments by Luthra that he could not find a
qualified provider. But Luthra provided little evidence to substantiate his alleged
efforts to comply. During the most recent hearings, in December 2016 and
January 2017, Luthra demonstrated that he was participating in non-home-based
therapy with a psychologist whose expertise in OCD was not established. He did
not show additional steps to comply with the parenting plan. He did not show
that the treatment ordered by the court was unavailable. In the absence of such
4 No. 76330-0-1/5
evidence, the trial court could reasonably determine that Luthra remained in
contempt.
Luthra contends that the trial court exceeded its authority by imposing jail
time as a sanction. We disagree.
The contempt statute authorizes both remedial and punitive sanctions.
RCW 7.21.050(1). "A remedial sanction is imposed for the purpose of coercing
performance when the contempt consists of failure to perform an act that is yet in
the person's power to perform." In re Interest of M.B., 101 Wn. App. 425,438,3
P.3d 780(2000), review denied 142 Wn.2d 1027(2001). Unlike punitive
sanctions, remedial sanctions are civil and therefore do not require criminal due
process protections. M.B., 101 Wn. App. at 438. "A contempt sanction involving
Imprisonment 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.
Luthra argues that the sanction is punitive because it requires
incarceration for a determinate number of days. The fact that a sanction imposes
a determinate sentence does not make it punitive. M.B., 101 Wn. App. at 439.
What is dispositive is whether the sanction is intended to punish or coerce. The
record establishes that the trial court ordered Luthra's incarceration to motivate
him to comply with the parenting plan after other sanctions failed to produce this
result. Luthra retained the power to purge the contempt and avoid future
contempt sanctions by committing an affirmative act—demonstrating his efforts
to comply with the parenting plan. The trial judge provided specific instructions
5 No. 76330-0-1/6
as to how Luthra could show compliance in both the December 2016 and
January 2017 contempt orders. We conclude the sanction was remedial, not
punitive.
Luthra contends that the trial court improperly modified the parenting plan
by ordering him to perform work crew days. This is so, he asserts, because the
parenting plan does not mention work crew as a possible consequence for
violations. This issue is not properly before us. The contempt orders requiring
Luthra to participate in work crew are not challenged in this appeal. In any event,
Luthra fails to demonstrate that a court modifies a parenting plan by imposing a
contempt sanction.
Luthra contends the trial judge was biased. The record does not support
this claim. Luthra points out that during the January 2017 review hearing, the
court denied a request by Luthra to continue the case until a public defender
could be appointed to represent him. The judge interpreted the request as
dilatory. This conclusion was reasonable under the circumstances.
Luthra challenges the portion of the contempt order awarding attorney
fees to Forrest. We will not disturb the award absent an abuse of discretion. In
re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954(1996). An award
of fees to the aggrieved parent in a contempt proceeding is authorized by
ROW 7.21.030(3) and ROW 26.09.160(1). The award here was supported by the
declaration of Forrest's counsel. Luthra offers no persuasive basis for finding
that the amount awarded was excessive or otherwise unreasonable. We decline
to vacate the award.
6 No. 76330-0-1/7
Luthra raises additional issues for the first time in his reply brief. An issue
raised and argued for the first time in a reply brief does not warrant consideration.
Cowiche Canyon Conservancy v. Bosley 118 Wn.2d 801, 809,828 P.2d 549
(1992).
To summarize, Luthra has identified no basis for overturning the trial court
orders. We are satisfied that the trial court adhered to applicable requirements in
crafting the orders and gave careful consideration to the circumstances of this
case. The judge exercised patience and flexibility in seeking proof from Luthra
that he is committed to satisfying his obligations under the parenting plan.
Imposing jail time was reasonable to motivate Luthra to obtain effective treatment
for his own sake and for that of his child.
Forrest requests attorney fees on appeal based on the filing of a frivolous
appeal or intransigence in this court. We decline to award fees on these
grounds.
In two prior appeals between Luthra and Forrest, we ordered Luthra to pay
attorney fees incurred by Forrest on appea1.3 Forrest alleges Luthra has not
complied with these orders. If Luthra files further appeals in this matter without
having paid Forrest's attorney fees as previously ordered by this court, Forrest
may file a motion to require full payment as a condition of appellate review. RAP
18.9(a).
3 Inre Marriage of Forrest, No. 71018-4-1, slip op. at 11-12(Wash. Ct. App. Nov. 17, 2014)(unpublished), htto://www.courts.wa.gov/opinions/pdf/710184.0f; In re Marriage of Forrest, No. 74034-2-1, slip op. at 13. 7 No. 76330-0-1/8
Affirmed.
WE CONCUR:
Mt"