In Re Marriage of Rideout
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 72366-4
Title of Case: In re the marriage Of: John C. Rideout and
Sara Dixon Rideout
File Date: 10/02/2003
Oral Argument Date: 01/22/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
JUSTICES
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Authored by Gerry L Alexander
Concurring: Faith Ireland
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Melissa Marie Denton
Attorney at Law
3285 Ferguson St SW Ste 105
Tumwater, WA 98512-6199
Counsel for Respondent(s)
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Charles E Szurszewski
Attorney at Law
201 5th Ave SW Ste 301
Olympia, WA 98501-1063
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Amicus Curiae on behalf of Wa State Natl Organization For Women
Matthew Ian Cooper
Attorney at Law
11000 Main St Ste 1
Bellevue, WA 98004-6301
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Bryan Patrick Harnetiaux
Attorney at Law
517 E 17th Ave
Spokane, WA 99203-2210
Catherine Wright Smith
Edwards Sieh Smith & Goodfriend PS
1109 1st Ave Ste 500
Seattle, WA 98101-2988
Debra Leigh Williams Stephens
Attorney at Law
6210 E Lincoln Ln
Spokane, WA 99217-9332
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Marriage of )
) No. 72366-4
JOHN CHRISTOPHER RIDEOUT, )
)
Respondent, )
)
and ) En Banc
)
SARA DIXON RIDEOUT, )
)
Petitioner. )
) Filed October 2, 2003
ALEXANDER, C.J.--Christopher Rideout initiated a contempt proceeding in
superior court against his former wife, Sara Rideout. In it he alleged
that Sara demonstrated a pattern of interference with visitation time with
their children to which Christopher was entitled pursuant to a court-
approved parenting plan and a subsequent court order establishing a summer
visitation schedule. After a hearing, the superior court held Sara in
contempt for what it concluded was her 'bad faith' failure to comply with
the terms of the court order relating to summer visitation. Sara obtained
review of that decision by the Court of Appeals, Division Two, which
affirmed the superior court's contempt order. Sara thereafter petitioned
for review by this court and we granted her petition. In re Marriage of
Rideout, 147 Wn.2d 1008 (2002).
We affirm the Court of Appeals, holding that: (1) notwithstanding the fact
that the submissions at the contempt proceeding were entirely documentary,
the superior court's findings of fact should be given deference and
evaluated to determine if there was substantial evidence to support them,
and (2) a parent who is the primary residential custodian may be held in
contempt, pursuant to RCW 26.09.160, for failure to make reasonable efforts
to require a child to visit the other parent as required by a parenting
plan and a court order establishing visitation.
I. Facts
On April 18, 1995, Christopher Rideout filed a petition in Thurston County
Superior Court seeking dissolution of his marriage to Sara Rideout. During
the course of the Rideout's marriage, a son, Christopher (Kit) (birth date
7/23/1989), and a daughter, Caroline (birth date 8/1/1987), were born to
the Rideouts. Custody of these children was the focal point of the highly
contested dissolution proceeding.
On August 25, 1997, the superior court entered a decree dissolving the
Rideout's marriage and approving a permanent parenting plan. The plan
provided that Sara was to have the children 'the majority of the time,'
except that Christopher and Sara would alternate weekends with the
children. Clerk's Papers (CP) at 7. Concerning the summer residence of
the children, the parenting plan provided that Kit and Caroline would
reside with Sara except for a four-week period when the children were to be
with Christopher. Christopher's summer visitation was to be taken in 'one
or two blocks of time, at the father's option.' CP at 5. The parenting
plan called for a continuation of the alternating weekend visitation
schedule during the summer, except when the children were out of the area
during a planned vacation. The plan specified that, in the absence of a
contrary agreement between Christopher and Sara, each summer block 'shall
begin at 5 p.m. on Friday and conclude at 8 p.m. Sunday.' CP at 6.
Christopher and Sara later agreed that the 'blocks of time' would begin on
Fridays at 2:30 p.m. as opposed to Fridays at 5 p.m. See CP at 16; see
also CP at 14. Transportation of the children for all scheduled
visitations was to be provided by 'the parent receiving the child(ren).'
CP at 7.
The parenting plan also provided that Christopher was to have visitation
with Caroline on her birthday in 'odd' years. CP at 7. Sara and
Christopher later agreed to follow a schedule for special occasions, which
included holidays, that is 'the opposite of the {schedule} in the parenting
plan.' CP at 56. Per their agreement, '{Christopher} was to have . . .
Caroline, for her thirteenth birthday on August 1, 2000.' CP at 65; see CP
at 56. It is an alternate weekend visitation, Christopher's scheduled
visitation with Caroline on her thirteenth birthday, and Christopher's
scheduled four-week visitation during the summer of 2000 that are
particularly pertinent to the issues in this case.
Beginning on June 18, 2000, Christopher left several telephone messages for
Sara in which he set forth the dates he wished to exercise his summer
visitation with their children.1 Specifically, he indicated that he had
requested 'four weeks of visitation with both of my children beginning on
July 14, 2000, and continuing for four consecutive weeks.' CP at 12. He
said that during the third and fourth week of the visitation they would be
'out of town' for a family reunion in Idaho. Id. July 14, 2000, was also
the first day of a weekend on which Christopher was entitled to visitation
with the children, pursuant to the alternate weekend visitation provision
of the parenting plan. Christopher followed his telephone calls with a
July 11, 2000, letter to Sara, in which he reiterated the dates he wished
to have the children with him that summer. Christopher's attorney also
sent Sara a letter on July 14, 2000, in which he specified the same dates.
In a letter to her attorney dated July 14, 2000, Sara indicated that '{t}he
first that {she} heard of Chris{topher's} vacation plans was through voice
mail in {her} office which {she} picked up on July 10.' CP at 19.
On July 14, 2000, Christopher went to Sara's home to pick up the children
for his weekend and summer visitation. Neither Sara nor the children were
then at the home. Later that day, Kit called his father who then went back
to Sara's house in order to pick him up. When Christopher was at Sara's
house collecting Kit, he was told that Caroline was horseback riding and
that she would be delivered to Christopher's home later that day. However,
Sara telephoned Christopher that day to tell him that Caroline was going to
be staying with her instead of going with Christopher. The following day,
Christopher again went to Sara's house in an effort to obtain Caroline.
Sara's boyfriend answered the door and declined to supply Christopher with
any information regarding Caroline's whereabouts.
On July 18, 2000, Christopher sought an order from the Thurston County
Superior Court establishing specific dates for his summer visitation. In
response, Sara filed a declaration in which she stated that 'Chris{topher}
Rideout is taking me to court, but his dispute is with our daughter. Since
she is still a minor, she is at a great disadvantage in this dispute and I
get dragged into the middle of it no matter how hard I try to stay out.'
CP at 27. On July 27, 2000, the superior court entered an order which
provided that Christopher was to have visitation with Caroline from July
27, 2000, through August 24, 2000. The order also required Sara to
transport Caroline to Christopher's house at 4:00 p.m. on that day. Sara
did not deliver the child to Christopher as she had been ordered.
Based on Sara's alleged failure to comply with the alternate residential
time awarded to Christopher, as set forth in the parenting plan,
Christopher brought a motion for an order holding Sara in contempt of
court. He alleged in his motion, which was filed on the same day that the
order establishing Christopher's summer visitation was entered, that Sara
'ha{d} engaged in a pattern of deliberately interfering with the alternate
residential time awarded to . . . Christopher . . . pursuant to the . . .
Parenting Plan.' CP at 48. Specifically, he indicated that Sara most
recently violated the parenting plan when she 'refused to make . . .
Caroline, available for weekend residential time {from} July 14-16, 2000,'
and when she 'withheld Caroline . . . on the following weekend of July 21-
23, 2000.' CP at 48. An order to show cause why Sara should not be held
in contempt was then served on her. Sara responded, maintaining that
because Caroline refused to visit with her father, Sara had not violated
the visitation order. In a declaration filed on August 1, 2000, Sara
stated that Caroline did not want to spend time with her father, indicating
that 'I have tried every method of persuasion available to me to encourage
my daughter to visit with her father{, but} Caroline adamantly refuses to
go visit him.' CP at 51.
On August 3, 2000, based on Sara's alleged 'failure to comply with the . .
. Parenting Plan . . . and with the Order to Set Dates Re Summer
Visitation,' Christopher filed a second motion for contempt against Sara.
In that motion, Christopher stated that 'I have not seen Caroline since
July 13, 2000.' CP at 55-56. He further declared that 'I have already
filed a motion regarding denial of my alternate weekend visitation. . . . I
have not had any alternate weekend visitations.' CP at 56.
A show cause hearing on both show cause orders was held before a superior
court commissioner on August 17, 2000. It focused on (1) the provisions of
the parenting plan relating to alternate residential weekend visitation,
(2) the parties' mutual agreement that Christopher would have visitation
with Caroline on her 13th birthday, and (3) Sara's alleged failure to
comply with the July 27, 2000, order regarding summer visitation.
Christopher and Sara were each represented by attorneys at this hearing.
The record before the court commissioner included numerous declarations
filed separately by Christopher and Sara, including the declarations
referred to above. Some of Sara's declarations were filed in relation to
Christopher's motion to establish dates for summer visitation and in
relation to his motion to enforce the alternate weekend visitation set
forth in the parenting plan. Other declarations were in relation to a
motion 'for family counseling, for permission to travel and for attorney
fees,' which Sara filed on August 1, 2000.2 CP at 50. Finally, others
were filed in relation to the motions for contempt brought by Christopher.
In her declarations, Sara consistently maintained that any dispute about
Caroline's visitation with Christopher was between Caroline and her father.
Some of Christopher's declarations described a pattern of behavior by Sara
during the summers of 1998, 1999, and 2000 in which Sara allegedly failed
to comply with the parenting plan insofar as it provided for Christopher's
summer and alternate weekend visitation with Caroline. More specifically,
Christopher alleged that in the summer of 1998, he planned to take Caroline
and Kit with him on vacation during a portion of his four weeks of summer
visitation with the children. Christopher indicated that shortly before
they were to leave for the vacation, Sara called him to say that Caroline
would not be going on vacation with him and that he could come over to her
home and 'drag Caroline out.' CP at 13. Christopher claimed that, as a
consequence, he '{r}eluctantly . . . forfeited a week and a half {of his
summer visitation}.' Id.
In addition, Christopher declared that in the summer of 1999, as he was
planning to leave on a two-week trip with the children, Sara called
Christopher to say that Caroline was ill. Christopher indicated that he
waited two days for Caroline to recover from her illness, but was then
informed by Sara that Caroline was still ill. Again, Christopher had a
shortened summer visitation with Caroline.
Sara presented a declaration, purportedly written by Caroline on July 25,
2000, expressing Caroline's views as to visitation with her father. In
this declaration, Caroline purportedly indicated that she called her father
'hoping to negotiate a plan involving the rest of {the} summer.' CP at
126. She indicated that Christopher told her that 'all of the 'hassle'
about the parenting plan was {her} fault.' Id. She further stated that 'I
don't want to spend four weeks with my father this summer.' Id. In
response, Christopher presented a declaration, in which he indicated that
he was 'confident that this declaration is not a free expression of my
daughter.' CP at 40.
After considering the declarations and argument of counsel, the court
commissioner entered findings of fact and conclusions of law. Among the
findings of fact are the following:
2. That parenting plan included provisions for summer residential time
with both parents. Specifically, the plan indicated that during the summer
the children reside with the father (a) for alternate weekend visitation,
(b) for one or two blocks totaling four weeks, and (c) for alternating
birthdays. The remaining time was to be spent with the mother, unless
otherwise agreed.
3. The father provided notice to the mother of proposed times for this
summer. The mother disagreed.
. . . .
5. After the father submitted his request for summer visitation, the
mother denied access to his daughter (a) for the four week period, (b) for
the every other weekend schedule, and (c) and for the daughter's thirteenth
birthday. . . .
6. An Order to Set Dates Re: Summer Visitation was signed by {the
superior court} on July 27, 2000. The terms of that order required the
mother to deliver the daughter to the father on July 27, 2000, at 4:00 p.m.
7. Although the mother went to the father's home in the afternoon and
evening on July 27, 2000, first to pick up and then to deliver the parties'
son, she did not deliver the daughter, as required by the court order
entered earlier that day. As of the hearing of August 10, 2000, the mother
had still not delivered the daughter to her father.
. . . .
10. The mother has overly involved the minor daughter in this action,
including facilitating the daughter's signing a statement which was filed
in this action.
11. Ms. Rideout is an intelligent, competent, and capable parent with the
ability to cause her thirteen year old to comply {with} the court's orders,
yet the mother has failed to do so. She was charged with a duty to comply
with an order, had the ability to comply, and failed to do so.
12. The parties agree that the father was to have the daughter, Caroline,
for her thirteenth birthday on August 1, 2000. The mother did not make the
daughter available to the father on her birthday. . . .
13. Ms. Rideout failed to comply with the terms of the parenting plan by
not allowing for every other weekend visitation on at least one occasion.
. . . .
16. The fact that the daughter does not live on her own and has lived
in the home of the mother is evidence that the mother could have caused the
daughter to visit her father.
CP at 64-65.
Based on these findings of fact, the court commissioner held that Sara was
responsible for making reasonable efforts to ensure Caroline's compliance
with the visitation order, reasoning that '{a} child of twelve or thirteen
is not of a sufficient age and maturity that she can be given decision-
making authority over whether visitation occurs.' CP at 65. The
commissioner also concluded that:
3. Although the mother failed to comply with the terms of the
parenting plan by not allowing for every other weekend visitation, her
actions do not rise to the level of bad faith.
4. {However, a} finding of contempt, warranted by bad faith, should be
entered for the mother's refusal or failure to comply with the terms of the
court's order of July 27, 2000.
CP at 65-66.
The court commissioner held, finally, that Sara was in contempt of the
court pursuant to the provisions of RCW 26.09.160. He then entered
judgment against Sara for '$100 per day' from 'July 27, 2000 through August
16, 2000.' CP at 66. Although Christopher had requested an award of
attorney fees and costs in the amount of $3,349.32, the commissioner
ordered Sara to pay the lesser sum of $892.50. Although a superior court
judge denied Sara's motion to revise the commissioner's order, the judge
entered an additional finding of fact that '{n}othing, prior to July 27,
2000, indicated that the child was reluctant to . . . visit her father.'
CP at 115.
Sara appealed the superior court's decision to the Court of Appeals,
Division Two. Christopher cross-appealed the portion of the decision
relating to attorney fees. The Court of Appeals upheld the trial court's
determination that Sara was in contempt of court. In re Marriage of
Rideout, 110 Wn. App. 370, 377, 40 P.3d 1192, review granted, 147 Wn.2d
1008, 54 P.3d 1212 (2002). In doing so, it concluded that it would not
review the documentary materials and affidavits de novo but would determine
only whether substantial evidence supported the trial court's determination
that Sara had acted in 'bad faith.' Upon reviewing the documentary
evidence and affidavits, the Court of Appeals concluded that when a child
resists visitation, the custodial parent may be held in contempt if he or
she either contributed to the child's attitude or failed to make reasonable
efforts to make the child comply. The Court of Appeals held that there was
sufficient evidence of both grounds. On Christopher's cross-appeal, the
Court of Appeals affirmed the amount of attorney fees awarded by the
superior court commissioner. It did, however, award Christopher attorney
fees on appeal concluding that, as 'the prevailing party on appeal,' he was
entitled to fees pursuant to RCW 26.09.140 and RAP 18.1(f). Rideout, 110
Wn. App. at 382.
Sara sought review by this court and we granted it.3 Two parties were
permitted to appear as amici curiae in this case, Washington State National
Organization for omen (NOW) and Washington State Trial Lawyers Association
Foundation (WSTLAF). NOW asserts that 'there should be a standard set of
guidelines to the courts which define when appointments of guardians ad
litem must be made in high conflict cases involving contempt of parenting
plan final orders.' Amicus Curiae Br. of NOW at 4. WSTLAF's brief
supports Sara on the issue of de novo review, asserting that '{n}o court, .
. . whether a superior court in the first instance or an appellate court
exercising de novo review, should resolve credibility issues that may be
outcome determinative of a pivotal factual question in the contempt
proceeding on a documentary record.' Br. of Amicus Curiae WSTLAF at 4.
II. Standard of Review
An attempt by a parent to refuse to perform a duty provided in a parenting
plan is deemed to be bad faith. RCW 26.09.160. If a trial court finds
after a hearing that a parent has 'not complied with the order establishing
residential provisions' of a parenting plan in 'bad faith,' the court
'shall find' the parent in contempt of court. RCW 26.09.160(2)(b).4
The contempt proceeding in this case was considered by the superior court
commissioner and the reviewing superior court judge solely on written
submissions, including declarations and affidavits.5 Neither Sara nor
Christopher objected to this procedure. Preliminarily at issue is what is
the proper standard of review under such circumstances. In conducting its
review, the Court of Appeals determined that the standard of review is
whether the trial court's findings of fact were supported by 'substantial
evidence' and 'whether the findings support the conclusions of law.'
Rideout, 110 Wn. App. at 377. In determining that the findings of fact
were to be reviewed for 'substantial evidence,' the court rejected Sara's
contention that it review the record de novo. Id.
Sara correctly observes that there are cases that stand for the proposition
that appellate courts are in as good a position as trial courts to review
written submissions and, thus, may generally review de novo decisions of
trial courts that were based on affidavits and other documentary evidence.
See, e.g., Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d
243, 252, 884 P.2d 592 (1994); Smith v. Skagit County, 75 Wn.2d 715, 718,
453 P.2d 832 (1969); In re Marriage of Flynn, 94 Wn. App. 185, 190, 972
P.2d 500 (1999); Danielson v. City of Seattle, 45 Wn. App. 235, 240, 724
P.2d 1115 (1986), aff'd, 108 Wn.2d 788, 742 P.2d 717 (1987). The
aforementioned cases differ from the instant in that they did not require a
determination of the credibility of a party. Here, credibility is very
much at issue.
We agree with the Court of Appeals that no Washington appellate court
reviewing documentary records has weighed credibility. Indeed, the general
rule relating to de novo review applies only when the trial court has not
seen or heard testimony requiring it to assess the credibility of the
witnesses. Progressive Animal Welfare Soc'y, 125 Wn.2d at 252. Here,
where the proceeding at the trial court turned on credibility
determinations and a factual finding of bad faith, it seems entirely
appropriate for a reviewing court to apply a substantial evidence standard
of review.
In seeking review here, Sara relied heavily on the fact that this court had
granted review of a decision of the Court of Appeals in In re Parentage of
Jannot, 110 Wn. App. 16, 37 P.3d 1265 (2002). There, Division Three of the
Court of Appeals held that a trial court's decision to deny a motion to
modify a child custody provision in a dissolution decree or parenting plan
on the basis of affidavits alone, without a hearing, is reviewed for an
abuse of discretion and not de novo. Although Sara may have been
encouraged by our decision to grant review of Division One's decision in
Jannot, her optimism was unwarranted since this court recently affirmed the
Court of Appeals' decision in that case. In re Parentage of Jannot, 149
Wn.2d 123, 65 P.3d 664 (2003). In doing so, we recognized that 'local
trial judges decide factual domestic relations questions on a regular
basis' and consequently 'stand in a better position than an appellate judge
to decide whether submitted affidavits establish adequate cause for a full
hearing on a petition to modify a parenting plan.' Id. at 126.
We hold here that the Court of Appeals correctly concluded that the
substantial evidence standard of review should be applied here where
competing documentary evidence had to be weighed and conflicts resolved.
The application of the substantial evidence standard in cases such as this
is a narrow exception to the general rule that where a trial court
considers only documents, such as parties' declarations, in reaching its
decision, the appellate court may review such cases de novo because that
court is in the same position as trial courts to review written
submissions. See, e.g., Smith, 75 Wn.2d at 718-19.
Although an argument can and indeed has been advanced that the appellate
court is in as good a position to judge credibility of witnesses when the
record is entirely documentary, we reject that argument. As we noted in
Jannot, 149 Wn.2d 123, trial judges and court commissioners routinely hear
family law matters. In our view, they are better equipped to make
credibility determinations. Having said that, we recognize that where an
outcome determinative credibility issue is before the court in a contempt
proceeding, it may often be preferable for the superior court judge or
commissioner to hear live testimony of the parties or other witnesses,
particularly where the presentation of live testimony is requested. In
that respect, we agree with the amicus WSTLAF that issues of credibility
are ordinarily better resolved in the 'crucible of the courtroom, where a
party or witness' fact contentions are tested by cross-examination, and
weighed by a court in light of its observations of demeanor and related
factors.' Br. of Amicus Curiae WSTLAF at 14. Here, Sara had a right to
request the opportunity to present live testimony pursuant to Thurston
County Local Rule 43(e) or CR 43(e)(1), but she failed to make that
request.
The procedural safeguards of our court system strongly support the
application of the substantial evidence standard of review. As noted,
trial courts are better equipped than multijudge appellate courts to
resolve conflicts and draw inferences from the evidence. In sum, we affirm
the decision of the Court of Appeals, holding that the appropriate standard
of review here is not de novo, but rather is whether the trial court's
findings of fact are supported by substantial evidence.
III. The Contempt Order
As we have indicated above, a parent who refuses to comply with duties
imposed by a parenting plan is considered to have acted in 'bad faith.'
RCW 26.09.160(1). Parents are deemed to have the ability to comply with
orders establishing residential provisions and the burden is on a
noncomplying parent to establish by a preponderance of the evidence that he
or she lacked the ability to comply with the residential provisions of a
court-ordered parenting plan or had a reasonable excuse for noncompliance.
See RCW 26.09.160(4).
Here, the trial court was confronted with a showing of Sara's failure to
comply with a July 27, 2000, order of the trial court requiring her to
deliver Caroline to Christopher at a specific time and location. Indeed,
Sara does not dispute the fact that she did not comply with that order.
Rather, she contends that her failure to comply was not in bad faith
because she tried, albeit unsuccessfully, to persuade Caroline to visit her
father at the time specified. The trial court did not accept that
explanation, determining that Sara was a 'competent, and capable parent'
with the ability to require her 13-year-old daughter to comply with the
court's orders 'yet . . . failed to do so.' CP at 65.
We must first determine if the findings of the trial court should be
sustained. That question is easily answered because although Sara
challenged the findings of the trial court at the Court of Appeals, she did
not challenge any of its findings in her petition for review or in her
supplemental brief. They are, therefore, verities. Furthermore, even if
she had challenged the findings of the trial court, the challenge would not
avail her, since this court is satisfied that the findings are supported by
substantial evidence.
The more fundamental question before us is whether a contempt order is
appropriate when a child refuses to attend a court-ordered visitation
because the parent charged with facilitating that visit has, as the trial
court found, either acquiesced in or encouraged the child's refusal to
visit? After examining relevant case law from other states,6 the Court of
Appeals answered that question in the affirmative and affirmed the trial
court's decision to hold Sara in contempt. It did so notwithstanding
Sara's argument that Caroline resisted visitation with her father, the
court being satisfied that the evidence showed 'that the {custodial} parent
has either contributed to the child's attitude or failed to make reasonable
efforts to require the child to comply.' Rideout, 110 Wn. App. at 379.
The Court of Appeals correctly noted here that there are no prior
Washington decisions directly addressing the question of whether a parent
acts in bad faith by acquiescing in the child's refusal to participate in
trial court-ordered visitation. Rideout, 110 Wn. App. at 377. Division
One of that court once touched upon the issue when it observed that if a
recalcitrant teenager refuses to spend time with his or her parent, and
'the parent with whom the child is living chooses not to force the issue
and notifies the other parent of that decision, punishment by contempt
appears to be an inappropriate remedy.' In re Marriage of James, 79 Wn.
App. 436, 445, 903 P.2d 470 (1995). We agree with the Court of Appeals
that this statement in the James decision was dictum because it had no
bearing on the decision that was rendered. Rideout, 110 Wn. App. at 378.
A later case, also from Division One of the Court of Appeals, is closer to
the instant and related to a circumstance where a parent did more than
simply acquiesce in the child's choice. The case is In re Marriage of
Farr, 87 Wn. App. 177, 940 P.2d 679 (1997), in which the court upheld an
order holding a father in contempt. In doing so, it concluded that the
trial court properly found that the father, though claiming that the child
chose not to spend time with his mother, manipulated the child's decision.
Here, the record shows that the trial court carefully examined the
voluminous record, including all of the submissions of the parties, and
noted that it revealed that Sara did not deliver Caroline to her father, as
she was directed to do by the trial court's order on July 27, 2000, even
though she had the ability to do so. Based on this finding and others, it
concluded that an order of 'contempt, warranted by bad faith, should be
entered for {Sara's} refusal or failure to comply with the terms of the
court's order of July 27, 2000.' CP at 66. We believe that this
conclusion was justified and that it is supportive of the contempt order
entered by the trial court pursuant to RCW 26.09.160(2)(b).
According to the parenting plan that was approved by the superior court at
the time the Rideouts' marriage was dissolved, Christopher was entitled to
four weeks of visitation with Caroline every summer. The record shows that
during the summers of both 1998 and 1999, Christopher did not obtain the
visits with Caroline that he was entitled to pursuant to the parenting
plan. In the summer of 2000, as we have observed, Sara failed to make
reasonable attempts to comply with the visitation provisions of the
parenting plan, as she began to communicate through her actions and words
that the issue of Caroline's summer visitation with her father was between
Caroline and Christopher. Although Caroline may not have wanted to visit
her father on July 27, 2000, and on other occasions, Sara made no attempt
to overcome the child's intransigence or to deliver her to Christopher's
house on July 27, 2000, as she was ordered to do.
In light of the events of July 27, 2000, and those leading up to that
unfortunate incident, which are summarized very succinctly in the trial
court's findings of fact, we find ourselves in agreement with the trial
court and the Court of Appeals that Sara not only contributed to Caroline's
resistance to visitation with her father, but failed to make reasonable
efforts to require Caroline to visit Christopher as required by the
parenting plan and the trial court's order for visitation.
In reaching the decision it did, the trial court noted a pattern of
behavior by Sara that demonstrated an unwillingness on her part to assume
responsibility for making reasonable efforts to comply with the provisions
of the orders establishing residential visitation for Christopher.
Although Sara portrayed herself as a powerless bystander without the
ability to require Caroline to visit her father in accordance with the
parenting plan and orders of the court, we agree with the trial court and
the Court of Appeals that by doing so she side-stepped her responsibilities
as a parent. There are no doubt numerous instances where a child may not
want to visit with his or her parent in accordance with a parenting plan or
pursuant to a specific order of the court. Whether they like it or not,
parents, like Sara, have an obligation to attempt to overcome the child's
resistance to the visitation in order to ensure that a child's visitation
with the other parent takes place. Sara had that responsibility and failed
to meet it by not assuring that Caroline visited with her father in
accordance with the parenting plan and the subsequent order of the trial
court. In other words, she was obligated to make good faith efforts to
require Caroline to do so. See RCW 26.09.160(1). The trial court
concluded that she did not measure up to this standard and, in our view,
that determination was justified. The trial court's determination was
sensible and based on an acknowledgment that, while a parent should not be
punished for the actions of a truly recalcitrant child, punishment is
appropriate when the parent is the source of the child's attitude or fails
to overcome the child's recalcitrance when, considering the child's age and
maturity, it is within that parent's power to do so.
In sum, we hold that where a child resists court-ordered visitation and
where the evidence establishes that the parent primarily responsible for
the care of the child either contributes to the child's attitude or fails
to make reasonable efforts to require the child to comply with the
parenting plan and a court-ordered visitation, such parent may be deemed to
have acted in 'bad faith' for purposes of RCW 26.09.160(1). We therefore
affirm the Court of Appeals' decision upholding the contempt order entered
by the superior court against Sara.
IV. Attorney Fees
A. Awarded by Court of Appeals
Sara contends that the Court of Appeals erred when it awarded attorney fees
to Christopher pursuant to RCW 26.09.140, based on its determination that
he was entitled to such fees as 'the prevailing party on appeal.' Rideout,
110 Wn. App. at 382. In support of her contention, Sara argues that RCW
26.09.140 'permits awards of appellate fees based on need and ability to
pay' and that 'RCW 26.09.140 has nothing to do with prevailing parties.'
Suppl. Br. of Pet'r at 16.
RCW 26.09.140 provides in relevant part that:
The court from time to time after considering the financial resources of
both parties may order a party to pay a reasonable amount for the cost to
the other party of maintaining or defending any proceeding under this
chapter and for reasonable attorney's fees or other professional fees in
connection therewith . . . .
Upon any appeal, the appellate court may, in its discretion, order a party
to pay for the cost to the other party of maintaining the appeal and
attorney's fees in addition to statutory costs.
(Emphasis added.) We agree with Sara. The aforementioned statute does not
support an award of attorney fees to a party simply on the basis that they
are 'prevailing.' Although the statute does invest appellate courts with
discretion to order a party to pay fees and costs to the opposing party,
that provision must be read in light of the fact that the statute ties the
award of fees to a consideration of financial circumstances. Here, there
is no indication that the relative financial circumstances of the parties
were a consideration in the award of fees to Christopher. It was,
therefore, error for the court to award attorney fees to Christopher
pursuant to RCW 26.09.140.
However, Christopher also sought fees at the Court of Appeals under
RCW 26.09.160. Concluding that an award of fees was appropriate under RCW
26.09.140, the Court of Appeals made no mention of Christopher's request
under RCW 26.09.160. Rideout, 110 Wn. App. at 382. On appeal, '{w}e may
affirm the {lower} court on any grounds established by the pleadings and
supported by the record.' Truck Ins. Exch. v. VanPort Homes, Inc., 147
Wn.2d 751, 766, 58 P.3d 276 (2002). Indeed, a reviewing court can sustain
a grant of attorney fees under a different statute than the one relied upon
by the lower court. State ex rel. A.N.C. v. Grenley, 91 Wn. App. 919, 927-
28, 959 P.2d 1130, review denied, 136 Wn.2d 1031, 972 P.2d 467 (1998).
RCW 26.09.160(1) provides as follows:
An attempt by a parent . . . to refuse to perform the 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.
(Emphasis added.) In addition, RCW 26.09.160(2)(b)(ii) provides:
(b) If, based on all the facts and circumstances, the court finds after
hearing that the parent, in bad faith, has not complied with the order
establishing residential provisions for the child, the court shall find the
parent in contempt of court. Upon a finding of contempt, the court shall
order:
. . . .
(ii) The parent to pay, to the moving party, all court costs and
reasonable attorneys' fees incurred as a result of the noncompliance, and
any reasonable expenses incurred in locating or returning a child . . . .
(Emphasis added.) These statutes have application to these circumstances.
We say that because all of the proceedings before the Court of Appeals
focused on Sara's noncompliance with the residential provisions of the
parenting plan relating to the Rideouts' children. Although the statutes
do not speak directly to attorney fees on appeal, we agree with the
reasoning of the Court of Appeals in In re Parentage of Schroeder, 106 Wn.
App. 343, 353-54, 22 P.3d 1280 (2001), that a party is entitled to an award
of attorney fees on appeal to the extent the fees relate to the issue of
contempt.
As we have observed above, Sara acted in bad faith in not complying with
the court order establishing residential provisions for Caroline. She
must, therefore, pay Christopher's attorney fees and costs for his appeal
to the Court of Appeals, in accordance with RCW 26.09.160(1), (2)(b)(ii).
B. For Proceedings in this Court
Christopher and Sara each ask this court to grant them reasonable attorney
fees and costs for the proceedings before this court. As he did at the
Court of Appeals, Christopher bases his claim for fees on the provisions of
RCW 26.09.140 and RCW 26.09.160. Sara rejects Christopher's claim for an
award of fees and requests that she be awarded fees pursuant to RCW
26.09.140, asserting that she is 'unable to pay her appellate attorney
fees.' Suppl. Br. of Pet'r at 18-19.
Due to Sara's bad faith in complying with the parenting plan, she must also
pay Christopher's attorney fees and costs for his appeal to this court, in
accordance with RCW 26.09.160(1), (2)(b)(ii). In light of that conclusion,
we deny Sara's request for attorney fees.
V. Conclusion
In sum, we affirm the Court of Appeals' holding that, notwithstanding
the fact that the record was entirely documentary, the superior court's
findings should be given deference and evaluated to determine if there was
substantial evidence to support them. We also affirm the Court of Appeals
in holding that a parent who is the primary residential custodian may be
held in contempt, pursuant to RCW 26.09.160, for failing to make reasonable
efforts to require a child to visit the other parent as required by a
parenting plan and court order establishing visitation. We affirm, on
different grounds, the Court of Appeals' decision to the extent that it
awarded attorney fees to Christopher for the appeal to that court. We also
award attorney fees and costs to Christopher for the proceedings in this
court. We deny Sara's request for fees.
WE CONCUR:
1 Though the parenting plan specifies that Christopher's summer visitation
'blocks of time' are to be at his option, Sara 'admit{ted}' in a
declaration that '{a}s to the specifics of the {summer visitation}
schedule, . . . {i}t has been {her} role to coordinate visitation.' CP at
5, 32.
2 That motion was denied by the superior court.
3 Christopher did not seek review of the Court of Appeals' decision
regarding attorney fees.
4 RCW 26.09.160 is contained in chapter 26.09 RCW. The policy behind that
chapter was pronounced by the legislature in RCW 26.09.002, as follows:
'Parents have the responsibility to make decisions and perform other
parental functions necessary for the care and growth of their minor
children. In any proceeding between parents under this chapter, the best
interests of the child shall be the standard by which the court determines
and allocates the parties' parental responsibilities. The state recognizes
the fundamental importance of the parent-child relationship to the welfare
of the child, and that the relationship between the child and each parent
should be fostered unless inconsistent with the child's best interests.
The best interests of the child are served by a parenting arrangement that
best maintains a child's emotional growth, health and stability, and
physical care. Further, the best interest of the child is ordinarily
served when the existing pattern of interaction between a parent and child
is altered only to the extent necessitated by the changed relationship of
the parents or as required to protect the child from physical, mental, or
emotional harm.' (Emphasis added.)
5 Only the superior court's decision is at issue because 'once the superior
court makes a decision on revision, the appeal is from the superior court's
decision, not the commissioner's.' State v. Hoffman, 115 Wn. App. 91, 101,
60 P.3d 1261 (2003).
6 See, e.g., MacIntosh v. MacIntosh, 749 N.E.2d 626, 630 (Ind. Ct. App.
2001) (where the court rejected the notion that a child's resistance may
excuse a missed visitation); Hartzell v. Norman T.L., 629 N.E.2d 1292, 1295
(Ind. Ct. App. 1994) ('{A}n adolescent's refusal to cooperate with
scheduled visitation cannot divest a dissolution court of its authority to
enforce its visitation orders.'); Clark v. Atkins, 489 N.E.2d 90, 97 (Ind.
Ct. App. 1986) (rejecting mother's argument that her minor children's
refusal to visit their father justified her noncompliance with a visitation
order); Hancock v. Hancock, 122 N.C. App. 518, 471 S.E.2d 415, 420 (1996)
(Where the court held that where 'the custodial parent does not prevent
visitation but takes no action to force visitation when the child refuses
to go,' a contempt order is inappropriate because the parent's action is
not willful.); Smith v. Smith, 70 Ohio App. 2d 87, 434 N.E.2d 749, 752
(1980) (Where the court, focusing on the young age of the children (five-
and eight-years-old), and reasoning that they were too young to make an
affirmative and independent choice not to visit their father, upheld a
contempt order against the mother who argued that her children refused to
visit their father despite her encouragement to them to do so. The court
reasoned that, given the age of the children, the mother had to do more
than simply encourage them to visit their father.); Commonwealth ex rel.
Ermel v. Ermel, 322 Pa. Super. 400, 469 A.2d 682, 685 (1983) (after finding
that the daughter's ''negative attitude' toward her father {was} a direct
result of {her mother's} conduct,' the court upheld a contempt order where
an 11-year-old girl refused to visit her father).