In Re Marriage of Rideout
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 26656-3-II
Title of Case: Marriage of John C. Rideout, Respondent
v.
Sara Dixon Rideout, Appellant
File Date: 02/22/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Thurston County
Docket No: 95-3-00455-6
Judgment or order under review
Date filed: 10/30/2000
Judge signing: Hon. Paula K. Casey
JUDGES
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Authored by David H. Armstrong
Concurring: Elaine M. Houghton
J. Robin Hunt
COUNSEL OF RECORD
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Counsel for Appellant(s)
Melissa M. Denton
Ascher & Denton
3285 Ferguson St SW
Suite 105
Tumwater, WA 98512-6154
Counsel for Respondent(s)
Charles E. Szurszewski
Connolly Tacon & Meserve
201 W. 5th
Suite 301
Olympia, WA 98501-1060
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Kenneth W. Masters
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In Re the Marriage of: No. 26656-3-II
JOHN CHRISTOPHER RIDEOUT,
Respondent/Cross-
Appellant,
v.
SARA DIXON RIDEOUT, PUBLISHED OPINION
Appellant.
ARMSTRONG, C.J. -- Sara Rideout did not deliver her daughter,
Caroline, to court-ordered visitation with her father, Christopher Rideout.
Sara explained to Christopher that Caroline refused to go. On
Christopher's motion, the court commissioner found Sara in contempt,
awarded Christopher costs and attorney fees, and imposed a fine. The
commissioner found that Sara acted in bad faith by not delivering Caroline
to her father. Sara moved to revise the commissioner's order, but the
superior court upheld the order. Sara appeals and Christopher cross-
appeals to argue that the commissioner awarded him insufficient costs and
attorney fees. We find no error and affirm.
FACTS
Christopher and Sara Rideout have a son, Christopher (Kit), and a
daughter, Caroline. The dissolution court entered a permanent parenting
plan in 1997. The plan provided that the children would reside with Sara
during the summer except for four weeks with Christopher.
Sometime in June or July 2000, Christopher notified Sara of the dates for
his four weeks that summer. Christopher says he left several telephone
messages for Sara about the dates, beginning June 18. Christopher sent
Sara a letter on July 11, 2000, to confirm the dates, and Christopher's
attorney also sent Sara a letter on July 14. Sara says she first learned
of Christopher's plans from a telephone message on July 10. Christopher
wanted to have the children for four weeks beginning July 14, 2000. He
planned to take them to a family reunion in Idaho.
Christopher went to Sara's home on July 14 (at 2:30 p.m., the time
specified by the parenting plan) to pick up the children, but they were not
there. Later, Kit called Christopher and Christopher picked him up;
Caroline was busy horseback riding and was to come later. But Sara called
Christopher and said Caroline was going to stay with her.
On July 18, Christopher sought a court order setting specific dates for his
summer visitation. On July 27, the court ordered that Christopher would
have Caroline from July 27 through August 24. The order required Sara to
transport Caroline to Christopher's house at
4:00 p.m. on July 27; Sara did not. Caroline refused to go. Caroline
called Christopher twice on the 27th about the visitation, but Christopher
explained that he would not negotiate with her about it.
On July 31, 2000, Christopher sought a contempt order against Sara for
failing to comply with the court's July 27 order. Sara contended that she
did not violate the order in bad faith under RCW 26.09.160 because Caroline
had refused to cooperate with the visitation and did not want to spend time
with her father. The court commissioner found that Sara had 'overly
involved' Caroline in the court action and had the ability to cause
Caroline to comply with the visitation order. CP at 65. The commissioner
also found 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 then found Sara in
contempt of court under RCW 26.09.160 and fined her $100 per day from July
27 through August 16. Sara also had to pay $892.50 of Christopher's
attorney fees and costs. Christopher had asked for $3,349.32. Sara moved
for revision of the contempt order, which the court denied.
ANALYSIS
I. Standard of Review
The parties debate the proper standard of review. Christopher argues
that we should review the trial court's decision for an abuse of
discretion. Sara asks us to review the decision de novo because it was
based on declarations, not testimony. Ordinarily, when a trial court has
weighed the evidence and determined the relevant facts, we review the
record for substantial evidence to support the trial court's factual
findings. In re Marriage of Crosetto, 82 Wn. App. 545, 553, 918 P.2d 954
(1996). Several cases have said, however, that when a trial court
considers only documents, such as parties' declarations, in reaching its
decision, we need not defer to the trial court because we have the same
opportunity to review the record. See, e.g., Smith v. Skagit County, 75
Wn.2d 715, 718-19, 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). But Sara asks us to weigh the
parties' credibility. And no appellate court reviewing documentary records
de novo has weighed credibility.
For example, in Smith, the Supreme Court reviewed a documentary record de
novo and reversed a trial court's decision that Skagit County's board of
commissioners acted within its discretion by rezoning an island from
residential to industrial use. Smith, 75 Wn.2d at 719. The court held
that the commissioners arbitrarily and capriciously 'spot zoned' the area
for the benefit of a particular permit applicant. Smith, 75 Wn.2d at 719.
But the focus of the court's review was the reasonableness of the
commissioners' decision, based on the 'documents, reports, maps, charts,
official data and the like' that the parties submitted. Smith, 75 Wn.2d at
718. The court did not evaluate the credibility of any of the evidence in
the record but, rather, considered whether it justified the rezone.
And in Flynn, reviewing the parties' affidavits de novo, Division Three
reversed a trial court's refusal to hold a show cause hearing on a petition
to modify a parenting plan. Flynn, 94 Wn. App. at 190. But the court held
that the petitioner's alleged facts, if true, warranted a show cause
hearing. Flynn, 94 Wn. App. at 192. The court did not actually evaluate
whether the evidence was credible.
Finally, in Danielson, Division One reviewed de novo an administrative
transcript and documentary evidence. Danielson, 45 Wn. App. at 240. The
court affirmed a trial court's refusal to order the Seattle Police
Department to reinstate a discharged officer and reversed a damage award.
Danielson, 45 Wn. App. at 240. The Court of Appeals decided that, under a
police manual and due process requirements, an officer charged with a
felony did not have a right to a pretermination hearing. Danielson, 45 Wn.
App. at 240-46. And the court reversed the damages award because the
police department did not violate constitutional requirements. Danielson,
45 Wn. App. at 247. But while the court stated that it would not defer to
the trial court's factual findings, the analysis did not involve the
credibility of the evidence.
Further, in a recent appeal of a trial court's denial of a full hearing on
a petition to modify a parenting plan, Division One declined to review the
parties' affidavits de novo. In re Parentage of Jannot, Wn.2d , 37
P.3d 1265 (2002). The court decided to defer to the trial judge and review
the decision only for an abuse of discretion. Jannot, 37 P.3d at 1267-68.
The court reasoned, in part, that 'a local trial judge handles domestic
dockets frequently, sometimes exclusively. He or she reviews and considers
these questions on a regular basis and is therefore in a much better
position than us to pass upon the merits of competing allegations and
affidavits.' Jannot, 37 P.3d at 1267. We agree.
We also agree with Division One that de novo review of the entire record on
appeal is not feasible. See In re Marriage of Stern, 68 Wn. App. 922, 928-
29, 846 P.2d 1387 (1993). The trial courts are better equipped to resolve
conflicts and draw inferences from the evidence. Although the commissioner
here decided the issue on declarations, he could have taken testimony if
the declarations were inadequate to resolve the credibility issue and
disputes between the declarations. See Thurston County Sup. Ct. R. 43(e).
This court, in contrast, allows additional evidence only in very limited
circumstances and even then we generally direct the trial court to take the
evidence. See RAP 9.11. Moreover, the trial court can consider at least
parts of the entire dissolution record in deciding where the truth lies.
See ER 201; State v. Duran-Davila, 77 Wn. App. 701, 705, 892 P.2d 1125
(1995) (holding that a trial court may take judicial notice of undisputed
facts in court records in the same case).
Accordingly, we decline to review de novo the parties' declarations. But
we also decline to review the contempt order for an abuse of discretion. A
parent seeking a contempt order to compel another parent to comply with a
parenting plan must establish the contemnor's bad faith by a preponderance
of the evidence. RCW 26.09.160(2)(b); In re Marriage of James, 79 Wn. App.
436, 442, 903 P.2d 470 (1995). If the court finds that a parent has, in
bad faith, failed to comply with the parenting plan, 'the court shall find
the parent in contempt of court.' RCW 26.09.160(2)(b) (emphasis added).
Then, '{u}pon a finding of contempt, the court shall order' the contemnor
(1) to provide additional visitation time to make up for the missed time,
(2) pay the other parent's attorney fees and costs, and (3) pay the other
parent a penalty of at least one hundred dollars. RCW 26.09.160(2)(b)(i)-
(iii) (emphasis added). At its discretion, '{t}he court may also order the
parent to be imprisoned{.}' See RCW 26.09.160(2)(b) (emphasis added).
Other than sending a parent to jail, punishment for contempt in this
context is mandatory, not discretionary. See In re Marriage of Wolk, 65
Wn. App. 356, 359, 828 P.2d 634 (1992).
Thus, we will review the trial court's factual findings for substantial
evidence and then determine whether the findings support the conclusions of
law. Here, the critical legal conclusion is whether Sara acted in bad
faith in refusing to deliver Caroline to Christopher. If Sara acted in bad
faith, the trial court was compelled to enter a contempt order, and we must
uphold the order.
II. Contempt Order
A parent who refuses to perform the duties imposed by a parenting plan is
per se acting in bad faith. RCW 26.09.160(1). If bad faith per se is
shown, the contemnor parent must, to avoid a contempt order, establish an
excuse by a preponderance of the evidence. See
RCW 26.09.160(4). A parent is 'deemed to have the present ability to
comply with the order establishing residential provisions unless he or she
establishes otherwise by a preponderance of the evidence.' RCW
26.09.160(4). And a parent must 'establish a reasonable excuse for failure
to comply with the residential provision of a court-ordered parenting plan
by a preponderance of the evidence.' RCW 26.09.160(4).
Sara admits that she did not deliver Caroline to Christopher on July 27,
2000, as the court ordered. But she argues that she did not act in bad
faith. She contends that she tried to persuade Caroline to visit
Christopher, but she would not go. She believes that forcing Caroline to
visit Christopher was impossible. She states in her brief, '{t}he very
concept that a primary parent is responsible to force visitation upon an
unwilling teen is a violation of the very laws of nature.' Appellant's
Brief at 3. And she argues that a contempt order is not the appropriate
remedy where a child refuses to attend a planned visitation.
Washington's appellate courts have not decided whether a parent acts in bad
faith by acquiescing in a child's refusal to participate in court-ordered
visitation. Sara quotes James, 79 Wn. App. at 445, where Division One
noted that a contempt order may not be appropriate when compliance with the
parenting plan is difficult or impractical: 'For example, a recalcitrant
teenager may refuse to spend time with one parent. If 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.' James, 79 Wn. App. at 445. But the court's
statement in James is dictum, as it had no bearing on the outcome of that
case.1
Other states disagree on this issue. Indiana courts reject the notion that
a child's resistance may excuse missed visitation. MacIntosh v. MacIntosh,
749 N.E.2d 626, 630 (Ind. Ct. App. 2001); see also 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); 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.').
But other courts are less strict. A Pennsylvania court, after finding that
the daughter's ''negative attitude' toward her father {was} a direct result
of {her mother's} conduct,' upheld a contempt order where an eleven-year-
old girl refused to visit her father. Commonwealth v. Ermel, 322 Pa. Super
400, 469 A.2d 682, 685 (1983). The court found that the mother had impeded
her daughter's relationship with her father 'in every conceivable manner'
and that she had failed to foster in her daughter 'a sense of admiration
and respect for her father.' Ermel, 469 A.2d at 685.
And an Ohio court upheld a contempt order against a mother who argued that
her five and eight-year-old children refused to visit their father even
though she had encouraged them to do so. Smith v. Smith, 70 Ohio App. 2d
87, 434 N.E.2d 749, 752 (1980). Focusing on the children's age, the court
decided that five and eight-year-old children were too young to make an
affirmative and independent choice not to visit their father. Smith, 434
N.E.2d at 752. Because the children were so young, the court reasoned that
their mother had to do more than simply encourage them to visit their
father. Smith, 434 N.E.2d at 752.
Finally, a North Carolina 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. Hancock v. Hancock, 122 N.C. App. 518, 471
S.E.2d 415, 419-20 (1996). The court decided that, absent evidence that
the mother refused to allow her son to visit his father or encouraged the
child's refusal to visit, the contempt order was improper. Hancock, 471
S.E.2d at 419-20.
We hold that to find that a parent has acted in bad faith where the child
resists court-ordered visitation, the evidence must show that the parent
has either contributed to the child's attitude or failed to make reasonable
efforts to require the child to comply. Here, the record supports a
finding that Sara both contributed to Caroline's recalcitrance and failed
to make reasonable efforts to require her to visit Christopher.
The events of the summer of 2000 were not isolated incidents; they followed
the pattern set in 1998 and 1999. In the summer of 1998, Sara called
Christopher and said that Caroline would not be going on vacation with him.
She offered to allow Christopher to come over and 'drag Caroline out.' CP
at 13. Although Christopher was entitled to four weeks of visitation, he
got only two-and-a-half weeks. In the summer of 1999, when Christopher was
about to leave on a two-week trip, Sara called and said that Caroline was
ill. He waited two days for her to feel better, but Sara said that
Caroline was still ill. Again, Christopher got only two-and-a-half weeks
visitation.
In the summer of 2000, Christopher left several messages for Sara about
setting the dates for his four weeks. In his second message, in the first
week of July, he told her the specific dates he wanted. On July 10, Sara
denied receiving the messages and said that the proposed dates were
unreasonable on such short notice. Christopher wrote Sara that he would
pick up the children on July 14 and return them on August 13 at 8:00 p.m.
But when Christopher attempted to pick up the children on July 14, Sara's
boyfriend answered the door and said he did not know where the children
were. That evening, Sara called Christopher to report that Caroline was
staying with her. Christopher tried to pick up Caroline again on July 15.
And again, Sara's boyfriend answered the door and refused to tell
Christopher where Caroline was. Yet, Christopher stated that he had 'a
number of very positive conversations' with Caroline about their planned
trip to Idaho until late June when he began trying to set the dates for the
vacation. CP at 60.
In a letter of July 14, Sara explained the problems with Christopher'
plan to take the children that day. She was upset that Christopher had
again delayed setting his time with the children and that she had plans
with the children for the weekend of July 15. She did not mention any
reluctance by Caroline to spend four weeks with her father. Sara had the
children on the weekend of July 15 and 16, 2000. Christopher, who has the
children on alternate weekends, tried to pick up the children for July 22
and 23, but no one was home. Christopher taped a note to the door, but
Sara did not call him. And Christopher was scheduled to have Caroline for
her 13th birthday on August 1, 2000. He tried to pick her up but was
unsuccessful. The commissioner found that Sara 'did not make {Caroline}
available to {Christopher} on her birthday.' CP at 65.
Most importantly, Sara from the outset has maintained that any dispute
about Caroline's visitation with her father is between Caroline and her
father. During the dissolution, Sara attempted to have Caroline
represented by an attorney. Caroline was then nine years old. The trial
court properly refused to allow such representation, which would have made
Caroline, in effect, a party in the dissolution. At the hearing on July
27, Sara presented a statement written by Caroline purportedly expressing
her views as to visitation with Christopher. Christopher stated that the
writing style was not Caroline's, and the commissioner found that the
letter was evidence that Sara had overly involved Caroline in the action.
Finally, in a declaration filed on July 25, Sara said, 'Christopher 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.
This evidence shows that Sara does not understand her obligation to require
Caroline to comply with the parenting plan. Instead, she wants to cast
herself in the role of a bystander without the power or right to require
that Caroline follow the parenting plan. But the law imposes a greater
responsibility on Sara. She, not Caroline, bears the primary
responsibility to ensure that Caroline visit with her father according to
the parenting plan. And she must, in good faith, make every effort to
require Caroline to do so.
This case is similar to In re Marriage of Farr, 87 Wn. App. 177, 940
P.2d 679 (1997). There, Division One upheld a contempt order against a
father who refused to cooperate with a court-appointed arbitrator and
manipulated his son's decision not to live with his mother. The trial
court found that the father had 'subtly manipulated {his son's} choice to
spend no residential time with his mother by displaying extreme hostility
toward her.' Farr, 87 Wn. App. at 181-82. And the court concluded that
the father acted in bad faith by not complying with the parenting plan.
Farr, 87 Wn. App. at 185. Here, as in Farr, Caroline's repeated failures
to visit with her father coupled with Sara's proffered excuses and her
bystander attitude are sufficient to conclude that Sara was subtly
manipulating the course of events to frustrate Christopher' visitation
rights.
Sara argues, however, that the July 27 order setting the summer
vacation dates was invalid because it failed to include the required
warning language of RCW 26.09.165. The statute requires a warning that
failure to comply with an order's residential provisions is punishable by
contempt of court. RCW 26.09.165. But Sara concedes that she did not
raise this issue before the commissioner or the superior court. She cannot
now argue it on appeal. See RAP 2.5(a); State v. Pesta, 87 Wn. App. 515,
525, 942 P.2d 1013 (1997) (declining to address a challenge to the validity
of a parenting order under RCW 26.09.165 raised for the first time on
appeal).
III. Attorney Fees
Christopher cross-appeals, arguing that the commissioner and judge did
not award him sufficient costs and attorney fees. Under RCW
26.09.160(2)(b)(ii), the court 'shall order . . . {the contemnor} to pay,
to the moving party, all court costs and reasonable attorneys' fees
incurred as a result of the noncompliance{.}' Here, Christopher requested
$3,349.32 in costs and attorney fees. But the commissioner determined that
only $892.50 of this amount related to the contempt motion and awarded this
amount.
Christopher argues that he was entitled to all of the fees relating to
Sara's alleged noncompliance with the parenting plan and other court
orders. But the only noncompliance that the commissioner found, and that
the judge upheld on Sara's motion to revise, was Sara's failure to comply
with the court's July 27 order. Thus, Christopher was entitled to only the
fees related to his contempt motion for this violation.
As the prevailing party on appeal, Christopher is also entitled to attorney
fees on appeal in an amount to be set by a commissioner of this court. See
RCW 26.09.140; RAP 18.1(f).
Affirmed.
Armstrong, C.J.
We concur:
Houghton, J.
Hunt, J.
1 In James, the father failed to spend court-ordered visitation time with
his daughter. Meanwhile, the mother failed to make the daughter available
for scheduled telephone calls and failed to take her to a specified place
to meet her father. The court entered contempt orders against both of
them, which Division One reversed. James, 79 Wn. App. at 438.