FILED
JANUARY 30, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Custody of )
) No. 34994-2-111
C.R.D.t )
)
) UNPUBLISHED OPINION
)
KORSMO, J. -A mother appeals from a contempt order by challenging the terms
of an agreement she entered into in order to gain custody of her child from the paternal
grandparents. Concluding that she should have sought modification rather than disobey
the agreement, we affirm the trial court.
FACTS
R.G., the appellant, is the mother of an eight-year-old daughter, C.D. The child's
father is the late B.D., whose parents, M.D. and S.D., are the respondents in this action.
R.G. and B.D. never married and both had substance abuse problems that left them
t To protect the privacy interests of C.R.D., a minor, we use his/her and his/her
parents' initials throughout this opinion. General Court Order for Court of Appeals, In
re Changes to Case Title, (Wash. Ct. App. May 25, 2017), http://www.courts.wa.gov
/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2017_002&div=III.
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unable to parent C.D. The child spent most ofthe first five years ofher life living with
her grandparents, M.D.and S.D.1
The death ofB.D.led to C.D.receiving approximately $940per month in Social
Security survivor benefits. R.G.eventually sought to gain custody ofC.D. Represented
by counsel, she negotiated a parenting plan with M.D.and S.D.in November 2014. A
guardian ad litem represented C.D.'s interests. Paragraph 3.1 2.2 ofthat "Agreed
Residential Schedule" (ARS) is at issue in this appeal:
As it currently stands the payee and overseer of [C.D 's ] social security
benefit left to her by [B.D.] is [S.D.]. [S.D.] is to remain the payee until
such time as social security dictates that [R.G.] becomes the payee by virtue
ofthe guardianship/parentage of [C.D.]....
It is the intent ofthe parties that an educational fund be created for the
child. It is also the intent ofthe parties that mother provide for the basic
needs ofthe child. It is agreed by both [R.G.] and [M.D.] and [S.D.] that
within three days ofsocial security benefit payout monthly (the third week
ofeach month) [R.G.] will place into a custodial account, with [C.D.] and
her names on it, an amount equal to one-halfofwhatever the social security
death benefit payout is. These funds are to be retained for [C.D.'s ] future
secondary education upon her graduation from high school. Should [C.D.]
not attend a secondary educational facility the fund is still hers upon
graduation from high school and achieving adulthood. The amount paid to
this educational fund is to be the exact equivalent ofone-halfofwhatever
the monthly governmental payment is. The payment from [R.G.] to this
fund is not to be construed as an attachment ofsocial security death
benefits but a dollar amount due regardless ofthe source ofmoney. It is up
1
The record suggests that the grandparents gained custody while R.G. was
completing a jail sentence, but our record does not indicate whether or not any court
proceedings were used to confirm the custody arrangement.
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to [R.G.] to decide where the funds for this monthly saving come from....
[R.G.] is to provide a bi-annual statement to [M.D.and C.D.] showing the
account has been properly funded and the money retained.... This shall
be provided in June and January annually. A simple bank statement will
suffice.
Clerk's Papers (CP) at 5-6.
Sometime after she gained custody of C.D., the Social Security Administration
began sending C.D.'s benefit payments to R.G. In July 2015, the grandparents filed a
motion for an order to show cause for contempt, alleging that R.G.had not complied with
the residential schedule by (1) failing to allow them visitation and (2) failing to open the
educational fund. After holding a hearing, the court found that R.G.had failed in both
respects and ruled that she was in contempt of court. To purge the contempt finding, she
was told she could arrange make-up visitation for the grandparents and fund the trust
account.
R.G.did not attempt to purge the financial rulings. Instead, she soon filed for
bankruptcy and sought to discharge the funding obligation. The grandparents hired an
attorney who objected to the request. The bankruptcy court later determined that the
educational fund was a domestic support order and declined to discharge it.
A second contempt motion was filed in September 2016, alleging that R.G. was
still not in compliance with the financial elements of the initial contempt ruling. The
motion was heard by the same court commissioner who heard the earlier motion. R.G.
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was again found in contempt for failing to fund the education account. The new
contempt order included a judgment for $11,110 in past due educational funds and listed
C.D. as the judgment creditor. R.G. was ordered to comply with the funding
requirements within 30 days; doing so would purge the contempt order. R.G. moved for
reconsideration by the commissioner and also sought revision of the ruling by a superior
court judge. As part of the revision motion, she filed a motion to modify the parenting
plan's provisions allowing grandparent visitation and requiring the educational fund.
The commissioner denied reconsideration and, four days later, a judge denied the
revision motion. The judge expressly noted that the only issue before the court was the
propriety of the contempt order since there had been no motion to modify presented to
the commissioner. R.G. then timely appealed to this court. A panel considered the
matter without argument.
ANALYSIS
R.G. presents two issues for our consideration. First, she argues that the education
funding provision violates her constitutionally protected right to parent C.D. and she,
therefore, was not in contempt of court. She also argues that the trial court erred in
declining to revise the commissioner's ruling. We address her issues in the order stated.
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Right to Parent
R.G. argues that her constitutional right to parent means that the State cannot
enforce the terms of the ARS against her wishes and she, therefore, was not in contempt.
Such an approach would make residential schedules and many related orders totally
illusory. It also would mean that a parent lacks authority to enter into contracts that other
adults can enter into. For these and other reasons, we find her argument unpersuasive.
Parents have a fundamental liberty interest in the "care, custody, and control of
their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000) (internal citations omitted). Parental rights are not absolute; children also are
human beings and the State has a compelling interest in promoting and protecting the
child's best interests, although only in extraordinary situations can the State deprive a
parent of custody in favor of a nonparent. In re Marriage ofAllen, 28 Wn. App. 637, 626
P.2d 16 (1981); accord In re Custody ofB.MH, 179 Wn.2d 224, 235-236, 315 P.3d 470
(2013); In re Custody ofShields, 157 Wn.2d 126, 141-143, 136 P.3d 117 (2006).
Various aspects of marriage dissolution, financial support, and child custody are
controlled by written orders entered by courts and must be entered on approved forms.
E.g., RCW 26.09.006, .050, .135; RCW 26.10.045. Many, if not most, of these orders are
entered by agreement. E.g., RCW 26.09.070. Contempt of court is the intentional
disobedience of a lawful court order. In re Marriage ofHumphreys, 79 Wn. App. 596,
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599,9 03 P.2d 1 01 2 (1995). In the context of dissolution and parental support,contempt
is governed by RCW 26.09.160.
RCW 26.09.160(1) provides in part:
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.
The party moving for contempt has the burden of proving contempt by a
preponderance of the evidence by providing evidence that the offending party "acted in
bad faith or engaged in intentional misconduct or that prior sanctions have not secured
compliance with the plan." In re Marriage ofJames, 79 Wn.App.436,442,9 03 P.2d
47 0 (1995). A contempt ruling must be supported by a finding that a violation of a court
order was intentional. Holiday v. City ofMoses Lake, 157 Wn.App.347,355, 236P.3d
981 ( 2 01 0).
Whether contempt is warranted in a particular case is within the sound discretion
of the court. In re Marriage a/Thompson, 97 Wn.App. 873,877,988 P.2d 499 (1999);
James, 79 Wn.App.at 439-440. Discretion is abused where it is exercised on untenable
grounds or for untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39,46-47,
940 P.2d 1362 (1997); State ex rel. Carroll v. Junker, 79 Wn.2d 1 2, 26,48 2 P.2d 775
(1971). A trial court's challenged factual findings regarding contempt will be upheld on
appeal if they are supported by substantial evidence. In re Marriage ofRideout, 15 0
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Wn.2d 337,350,77 P.3d 1174 (2003). Substantial evidence is that sufficient to persuade
a fair-minded,rational person of the truth of the evidence. Miller v. City of Tacoma, 138
Wn.2d 318,323,979 P.2d 429 (1999). Because it is the role of the trial court,not the
appellate court,to find facts,a reviewing court lacks the ability to weigh evidence and
will not review credibility determinations. Rideout, 150 Wn.2d at 352; Quinn v. Cherry
Lane Auto Plaza, Inc., 153 Wn. App. 710,717,225 P.3d 266 (2009); In re Marriage of
Rich, 80 Wn. App. 252,259,907 P.2d 1234 (1996).
R.G. argues that she did not give up her right to parent in the best interests of C.D.
when she signed the ARS,claiming that she remained a fit parent since there had been no
court determination to the contrary. This argument makes little sense. The agreement
does not find her to be an unfit parent or in any manner restrict her parenting rights.
Instead,the essence of her argument is that because she is the parent,her obligation to act
in the best interests of her child means that she can ignore provisions2 of the ARS if she
wants to do so and the court cannot make her do otherwise without invading her
constitutional rights. However,she points to no relevant authority allowing a parent to
trump a court order.
2
Although not at issue in this appeal,the pleadings she filed in the trial court also
express frustration with having to allow visitation to the grandparents, blaming visitation
for disrupting C.D. 's life and limiting her outside activities.
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If the question was whether the court could force her, over her objection, to save a
particular amount of money each month for her daughter, there might be a different and
closer issue presented. But that is not the case here. R.G. voluntarily3 entered into the
agreement to fund the educational account. She provides no authority that suggests a
parent is not bound by her agreements. Our family law statutes provide otherwise.
Parents are recognized as being capable of entering into agreements, within the parameter
of the laws. If agreed upon provisions could not be enforced, parents would have less
ability to enter into agreements than other adults since they would be incapable of making
concessions related to their children. Any agreement by a parent touching on parental
authority would also be illusory since it would not be binding on the parent.4
3
In her trial court pleadings, R.G. indicates that she felt coerced into signing the
agreement because the alternative was to go to trial and perhaps lose C.D. forever.
Compromise is not coercion. R.G. had a weak case if the matter proceeded to trial. She
had not parented C.D. and, in fact, had been largely absent from the child's life. That left
her with little ability to prove that she was fit to parent and deserving of a custody award.
She also apparently believed she had the ability to support the child without using of all
of C.D.'s Social Security payment. Financial self-sufficiency is a positive factor in a
parental fitness case and the inclusion of the educational funding clause likely helped the
court agree to accept the plan. The clause also showed that R.G. was seeking to act in the
best interests of C.D. and was not looking to the child to support her.
4
R.G. does not explain how her theory would work out if the agreement was
between two parents, neither of whom (presumably) was bound to follow any provision
she or he did not like. If, for instance, the father wanted to have the children at
Christmas, even though the mother was given that date, how would the mother make him
return the children?
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R.G. has not demonstrated that she lacked capacity to enter into the funding
agreement. She also can point to no provision that gives her the ability to unilaterally
disavow those portions of the ARS she does not want to follow. In essence, having
gotten what she wanted out of the agreement, she now wants to disregard the rest of it.
That is not how contracts work. The trial court had the authority to enforce the entire
agreement, and could do so without infringing on her parental authority.
The commissioner's ruling on the contempt motion was, therefore, correct. R.G.
had agreed to do something, but then from the very beginning refused to live up to the
agreement. As soon as she became trustee for the Social Security payment, thereby
triggering her obligation to fund the education account, she refused to do so with no
explanation to the grandparents or the court. She then attempted to discharge the
obligation in bankruptcy. Her entire course of action has been to attempt to avoid her
responsibility under the agreement. The trial court understandably drew the conclusion
that she was intentionally disobeying the ARS since she had never made the least effort
to comply with the financial terms.
The record supports the determination that R.G.'s noncompliance was willful.
The ruling finding R.G. in contempt is affirmed.
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Revision Ruling
R.G. also takes issue with the revision ruling, arguing that the trial judge should
have considered her motion to vacate paragraph 3.12.2 due to inability to afford the
payment. While inability to pay would be relevant to her defense to the contempt action
on the question of willfulness, a motion to eliminate the obligation going forward was
not. The trial court did not abuse its discretion in declining to consider the evidence.
The trial judge hearing the revision motion considers a record that is
circumscribed by statute. We recently described the revision hearing process:
When a superior court judge receives a case through a motion for revision,
the judge takes "jurisdiction of the entire case as heard before the
commissioner." State ex rel. Biddinger v. Griffiths, 137 Wash. 448, 451,
242 P. 969 (1926). Although the superior court judge cannot accept new
evidence, RCW 2.24.050, a motion on revision is in all other respects equal
to any other matter on the court's docket. The judge reviews the law and
evidence de novo. State v. Ramer, 151 Wn.2d 106, 113, 116-117, 86 P.3d
132 (2004) (de novo standard applied even when commissioner heard live
testimony). Should the judge disagree with the commissioner's disposition,
the judge may issue his or her own independent factual findings and legal
conclusions. Id. at 113; Iturribarria Perez v. Bazaldua Garcia, 148 Wn.
App. 131, 138, 198 P.3d 539 (2009); Grieco v. Wilson, 144 Wn. App. 865,
877, 184 P.3d 668 (2008), ajf'd in part sub nom. In re Custody of E.A.T W,
168 Wn.2d 335, 227 P.3d 1284 (2010). Any subsequent appeal to this
court is one that reviews the decision of the superior court judge, not the
commissioner. Ramer, 151 Wn.2d at 113.
Matter of Marriage of Lyle, 199 Wn. App. 629, 632-633, 398 P.3d 1225 (2017).
The revision motion was held in accordance with this approach. The motion to
revise asked that the superior court judge review the commissioner's contempt ruling and
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overturn those portions of that ruling relating to financial conditions. CP at 99. The
judge did so limit his review, noting that vacation of the funding provision was not before
the court. Report of Proceedings at 27. More importantly, it was only the
commissioner's ruling, and the evidence presented to the commissioner, that were
properly before the judge at revision. 5 The motion for relief from the funding provision
of the ARS was not before the commissioner or the revision judge.
R.G. had a proper vehicle for obtaining relief from the funding requirement-a
motion to modify the provision of the ARS on the basis of change of circumstances. She
has, at last, filed for that relief. CP at 73-79. She should have sought that relief up front
rather than merely raise it as a defense to a contempt sanction. If she can establish her
inability to pay, the court may well afford her either permanent or temporary relief. To
do so, she will have to account for the support she is (or should be) receiving from the
father of her new child and give a more detailed analysis of her financial situation than
she has to this point.
Until that point is established to the satisfaction of the superior court, the funding
obligation R.G. voluntarily undertook is valid and she properly was found in contempt of
5
Since the case was before the commissioner on the grandparents' contempt
motion, rather than some motion for relief filed by the mother, revision understandably
had to be limited to that issue. Evidence of ability to pay was relevant to the willfulness
issue in the contempt action, but it did not serve as the basis for relief from the provisions
of the ARS.
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court for her willful failure to live up to that obligation. Should she prevail, she certainly
may attempt to seek relief from the existing judgment. But until that happens, she
properly was found in contempt of court. The superior court judge likewise properly
limited his consideration on revision to the issues and evidence that had been before the
comm1ss10ner.
The judgment is affirmed. The parties will bear their own costs, including
attorney fees.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate �eports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Fearin
Pennell, J.
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