IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE MARRIAGE OF
MICHAEL D. PEASE,
No. 71327-2-1
Appellant,
DIVISION ONE
v.
ELEANOR M. RANDECKER-PEASE, UNPUBLISHED OPINION
Respondent. FILED: March 2, 2015
Spearman, C.J. — Michael Pease was found in contempt of court for
failing to comply with a court order requiring him to make monthly maintenance
payments to Eleanor Randecker-Pease. He appeals the trial court's finding that
his failure to pay was intentional. He also argues that the trial court failed to make
the requisite finding that he had the present ability to pay. We affirm the trial
court's order of contempt and grant Randecker-Pease's request for an award of
attorneys' fees and costs for having to respond to a frivolous appeal. RAP
18.1(a); 18.9(a).
FACTS
Michael Pease and Eleanor Randecker-Pease filed for legal separation
and negotiated a distribution of marital assets. Under the November 8, 2007
decree, Pease was ordered to pay maintenance of $5,507 per month. While this
entire amount was characterized as "maintenance," it included a $3,200
mortgage payment, an additional $1,000 payment to be applied to principal, and
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payment of $1,247 to Randecker-Pease for expenses. The payment amount
varied slightly based on increases in required loan payments, the sale of the
house, and an agreed upon yearly increase in expenses based on the Consumer
Price Index for the Seattle Metropolitan Area. Beginning in September 2010,
Pease was also responsible for paying the monthly premium for Randecker-
Pease's health insurance. As of May 2013, the total maintenance obligation was
$5,724.33.
Pease filed for modification of maintenance payments and conversion of
the legal separation into a divorce in January 2013. Randecker-Pease responded
to Pease's motion and later moved for an order holding Pease in contempt for
failing to pay maintenance and health insurance. At a hearing on April 12, 2013,
the King County Commissioner declined to hold Pease in contempt, finding that
he "did not have the ability to pay," but also that he admitted that he owed "large
sums of money" to Randecker-Pease. Clerk's Papers (CP) at 117. The case
proceeded to trial by affidavit on the request for modification of maintenance
payments and to determine the judgment amount.
On April 19, 2013, the parties appeared before a different King County
Commissioner for hearing on the petition to modify.
Pease submitted declarations with testimony about facing multiple health
difficulties and being laid offfrom his job in 2008. He testified about looking for
work in IT management, receiving unemployment compensation until June 2010,
and taking out additional loans to pay bills and college expenses for his daughter.
He attempted to start a tax business and market an e-book series, but was
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unable to find work in various fields. He went on inactive status with the
Washington State Bar Association during that time because he could not meet
his licensing obligations. He began receiving Social Security Disability payments
in November 2012. In January 2013, Pease submitted a financial declaration
showing a monthly income of $2,439, monthly expenses of $1.232, and recently
paid debts of $4,220.56.
Randecker-Pease submitted declarations and exhibits showing that Pease
had consistently refused to pay and indicated that she would "need to sue [him]
for divorce in order to be paid anything [he] owe[d] [her]," and that he would "look
to reduce [his] obligations to [her] by what ever(sic) means necessary." CP at
310; CP at 341-2. She submitted evidence of Pease's endeavors to earn money
through a "hush, hush website" and a money-doubling scheme, and his request
to her for a loan of $8000. CP at 56.
The Commissioner denied the petition, finding "numerous inconsistencies
in the petitioner's bank statements relating to deposits and withdrawals," and that
Pease "chooses to pay things other than his court ordered obligation, and does
not make even partial payments toward his court ordered obligation." CP at 356-
360. The commissioner also found that Pease had "submitted no evidence that
he is limited in all types of work, and no evidence whatsoever that he [is] unable
to pursue limited employment." CP at 357. Additionally, the court found that
Pease, from his own declaration, had a monthly income surplus of $1,207, which
meant that "he had money with which to pay the respondent's health insurance
premiums and chose not to." CP at 358.
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Both parties filed motions for revision seeking judicial review of the denials
of the motions for contempt and to modify the order of maintenance. On
November 22, 2013, the trial court granted Randecker-Pease's motion for
revision and found Pease in contempt. Pease appeals.1
DISCUSSION
Pease argues that the standard of review is de novo, because the
decision was based on written material only. Brief of Appellant at 10. He cites a
number of cases that support this rule, including In re Estate of Bowers, 132 Wn.
App. 334, 339, 132 P.2d 916 (2006); Progressive Animal Welfare Soc. v.
University of Washington, 125 Wn.2d 243, 252, 884 P.2d 592 (1994); Amren v.
Citv of Kalama, 131 Wn.2d 25, 32, 929 P.2d 389 (1997); Housing Authority of
Citv of Pasco and Franklin Countv v. Pleasant, 126 Wn. App. 382, 387, 109 P.3d
422 (2005). Randecker-Pease disagrees, citing In re Marriage of Rideout, 150
Wn.2d 337, 350, 77 P.2d 1174 (2003) as support for appellate review based on
the substantial evidence standard. Br. of Respondent at 9.
In Rideout, the state Supreme Court observed that 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. 150 Wn.2d at
351. The court held, however, that the substantial evidence standard is
appropriate "where competing documentary evidence had to be weighed and
conflicts resolved." \± The Rideout court rejected the argument that an appellate
1 The trial court denied Pease's motion for revision regarding the denial of his petition to
modify the order of maintenance. Pease has not appealed this denial nor has he appealed the
judicial findings that the Commissioner's findings of fact and conclusions of law "are well
supported by the facts and the law." CP at 411.
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court is in "as good a position to judge credibility of witnesses when the record is
entirely documentary," reasoning that "trial courts are better equipped than
multijudge appellate courts to resolve conflicts and draw inferences from the
evidence." Rideout at 352. Under Rideout, substantial evidence is the
appropriate standard of review for the trial court's factual findings.
A trial court must make findings of fact that set forth the basis for its
judgment of contempt. In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d
470 (1995). In determining whether facts support a finding of contempt, the court
must strictly construe the order alleged to have been violated, and the facts must
constitute a plain violation of the order. In re Marriage of Humphreys, 79 Wn.
App. 596, 903 P.2d 1012 (1995). Whether contempt is warranted is a matter
within the trial court's discretion; unless that discretion is abused, it should not be
disturbed on appeal. King v. State of Wash., Dep't of Social & Health Services,
110 Wn.2d 793, 798, 756 P.2d 1303 (1988).
Pease argues that in order to find him in contempt, the trial court was
required to determine whether or not he had the present ability to pay the
monthly maintenance payments. Randecker-Pease argues that the trial court
only had to find intentional disobedience in order to find and hold Pease in
contempt.
RCW 7.21.010(1 )(b) defines "'contempt of court'" as "intentional ...
[disobedience of any lawful judgment, decree, order, or process of the court."
The primary purpose of civil contempt power is to coerce a party to comply with
an order or judgment. State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155(2001).
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A trial court may impose a contempt sanction under its inherent constitutional
authority or under statutory provisions governing contempt of court. State v.
Jordan, 146 Wn. App. 395, 190 P.3d 516 (2008). Contempt requires a finding of
"[i]ntentional disobedience." King, 110 Wn.2d at 797 (citing Matthewson v.
Primeau, 64 Wn.2d 929, 934, 395 P.2d 183 (1964)). Inability to comply is an
affirmative defense and Pease has both the burdens of production and
persuasion, jd. at 804. He must offer evidence as to his inability to comply and
the evidence must be of a kind the court finds credible. Id.
Pease argues that Britannia Holdings, Ltd. v. Greer, 127 Wn. App. 926,
113 P.3d 1041 (2005), precludes a finding of contempt when a trial court fails to
find that the contemnor has the present ability to comply with the order.
Randecker-Pease argues that Britannia has no application to this case, because
it was a civil collection case, not a family law matter, and involved incarceration
as a sanction. Furthermore, she argues that even if Britannia did apply, the trial
court found that Pease had the "present ability but is unwilling to comply with the
court's order." CP at 144.
We agree with Randecker-Pease and find that Britannia does not apply. In
Britannia, the appellants challenged the purge clause requiring them to pay the
amount owed, not the underlying finding of contempt. 127 Wn. App. at 930. The
appellants had been found in contempt of court for knowingly disobeying court
orders. Id The Brittania court found that the purge clause calling for incarceration
was impermissibly penal rather than coercive, without a finding that the
appellants had the present ability to pay. 127 Wn. App. at 934. Here, Pease is
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not challenging the purge clause and is under no threat of incarceration. The trial
court was therefore under no obligation to find that Pease had the present ability
to pay before entering a judgment of contempt.
Pease assigns error to a number of the trial court's factual findings. We
address only the alleged errors that are of consequence to the trial court's
decision.2 First, Pease argues that the trial court erred when it found that he had
intentionally failed to make his maintenance payments. We disagree. The trial
court found that there was "clear, convincing, and cogent evidence of [Pease's]
intentional failure to make his maintenance payments." CP at 144. Our review of
the record reveals multiple examples in which Pease declined to leverage his
credentials and pursue limited employment, invested in questionable business
ventures, paid debts other than maintenance, and verbally challenged
Randecker-Pease to enforce the order against him. We conclude that substantial
evidence supports the trial court's finding that Pease intentionally failed to make
payments to Randecker-Pease.
Second, Pease argues that there are no facts in the record that show that
he has the present ability to comply with the court ordered maintenance
provisions or to purge contempt. Again, this is not a requirement for a finding of
contempt, and Pease had the burden to show that he was unable to comply. The
2 Pease disputes a number of particular findings that are appurtenant to the trial court's
ultimate finding that he intentionally failed to make his maintenance payments. He argues that the
trial court erred when it found that he "used his severance package inappropriately." Br. of
Appellant at 1. He also contends that the trial courterred by finding that he "'held out' for a higher
paying job before lowering expectations and pursuing a wider range" ofjobs. Id. He further claims
it was error for the court to find that he did not "show a good faith effort to work and conserve
assets." }aV Finally, Pease argues that the trial court abused its discretion by concluding that he
had the present ability to pay maintenance butwas "unwilling to do so," and that nonpayment of
health insurance premiums was "evidence of contempt." \±
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record shows that the trial court considered all of the evidence and expressly
found that he did have the present ability. We defer to the fact finder on witness
credibility and the persuasiveness of the evidence. In re Marriage of Akon, 160
Wn. App. 48, 57, 248 P.3d 94 (2011). We decline to disturb the trial court's
findings with regard to Pease's present ability to pay his court ordered
obligations.
Finally, Pease assigns error to the trial court's failure to provide "a viable
method for [him] to purge contempt, and comply with the non-modifiable
maintenance order." Br. of Appellant at 1. He correctly states the rule that "'[a]n
order of remedial civil contempt must contain a purge clause under which a
contemnor has the ability to avoid a finding of contempt and/or incarceration for
non-compliance. In re Detention of Rebecca K., 101 Wn. App. 309, 314, 2 P.3d
501 (2000).'" Id, at 15.
The contempt order contains an express purge clause that states "[t]he
contemnor may purge the contempt by resuming payments as required by court
order, and by arranging for payment of the maintenance arrearages in a manner
agreeable to the respondent." CP at 145. Pease argues that this clause is
improper because it does not allow him to "perform an act that is yet within his or
her power to perform." Br. of Appellant at 15. He cites RCW 7.21.030(2), and
reiterates that he is unable to make the maintenance payments. The identified
language of RCW 7.21.030(3) sets forth the definition of a "remedial sanction,"
distinguishing it from a "punitive sanction." As discussed in Britannia, this
distinction applies to ensure that incarceration for civil contempt serves a
8
No. 71327-2-1/9
coercive, not a penal purpose. 127 Wn. App. at 933; see also Hippie v.
McFadden, 161 Wn. App. 550, 562, 255 P.3d 730 (2011) (court declined to
dismiss malpractice action based on contempt). Because incarceration is not
included in the purge clause, the trial court is not required to find a current ability
to perform the acts previously ordered.
Randecker-Pease asks for attorney fees on appeal for violation of RAP
18.9(a). She contends that he advances frivolous legal arguments and that he
acted with intransigence when he failed to provide a complete record for appeal.
RAP 18.1(a) entitles a party to attorney fees if a statute authorizes the
award. Under RAP 18.9(a), an appellate court may order a party to pay sanctions
if he or she uses these rules for the purpose of delay, files a frivolous appeal, or
fails to comply with the rules of appellate procedure. An appeal is frivolous if
there are no debatable issues upon which reasonable minds might differ and it is
so totally devoid of merit that there is not reasonable possibility of reversal. In re
Marriage of Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013) review
denied, 180 Wn.2d 1010, 325 P.3d 914 (2014) (citing Tiffany Family Trust v. Citv
of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005)). All doubts as to whether the
appeal is frivolous should be resolved in favor of the appellant, jd. An appeal that
is affirmed simply because the arguments are rejected is not frivolous, jd.
While we have rejected all of Pease's arguments, the record contains
conflicting factual findings regarding his ability to pay the required maintenance.
Raising at least one debatable issue precludes finding that the appeal as a whole
is frivolous. Advocates for Responsible Dev. v. West. Wash. Growth Mgmt.
No. 71327-2-1/10
Hearings Bd., 170 Wn.2d 577, 580-1, 245 P.3d 764 (2010). Resolving all doubts
in Pease's favor, we decline to find that his appeal was so totally devoid of merit
as to be frivolous.
Second, Randecker-Pease requests that we award fees on the basis of
intransigence, because Pease failed to provide a complete record for appeal.
Intransigence includes obstruction and foot dragging, filing repeated unnecessary
motions, or making a proceeding unduly difficult and costly. In re Marriage of
Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). The appellate record shows
that as a result of Pease's failure, Randecker-Pease was required to file a
supplemental designation of clerk's papers on March 21, 2014. While this may
have been a frustration and inconvenience to Randecker-Pease, it does not rise
to the level of intransigence. We conclude that Randecker-Pease is not entitled
to attorney fees on either asserted ground.
Affirm.
WE CONCUR:
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