                                                                                         FILED
                                                                               COURT OF APPEALS
                                                                                     DIVISION II

                                                                              201514n AN 9= 27
                                         SPATWAF
    IN THE COURT OF APPEALS OF THE STATE OF     S                                              i
                                                                                                   n161/
                                                                                                      4
                                         BY
                                            DIVISION II                                  P" J Y


DANIEL LANCE KULMAN,                                                        No. 45722 -9 -II


                                   Respondent,


        v.



ANNE SETSUKO GIROUX,                                                  UNPUBLISHED OPINION


                                   Appellant.


       WORSWICK, J. — Anne Giroux appeals a superior court commissioner' s contempt order


against Giroux for her refusal to comply with orders to obtain a mental health evaluation for

herself and to enroll her children with a new therapist approved by the guardian ad litem (GAL).

Giroux argues that the contempt sanction was punitive because she was unable to comply with

the purge condition and because her one day of confinement was a determinate term of

confinement that she could not shorten by compliance. Because the contempt sanction was not

punitive, we affirm.



                                                   FACTS


       Anne Giroux and Daniel Kulman were divorced in 2006 and had two children together.

Residential time for their two children was subject to a 2009 agreed parenting plan, which made

Giroux the primary residential parent and gave Kulman only supervised visitation until he
completed    domestic   violence   treatment.   The children   were   in talk therapy.
No. 45722 -9 -II



         After one of the children became ill, the State initiated dependency proceedings and

removed the children from Giroux' s home, motivated in part by concerns about Giroux' s mental

health. The State later dismissed the dependency and returned the children to Giroux.

A. :     Kulman' s Motion To Mods the Parenting Plan and the Commissioner 's Order
         Requiring Therapy

         In 2012, after Kulman had completed his domestic violence treatment, he moved to


modify the parenting plan. On March 27, 2013, the commissioner entered an order requiring

therapy and a mental health assessment ( therapy order) that included two pertinent provisions.

First, the therapy order required Giroux to enroll the children in therapy with Jamie Kautz for the

purpose of eventually reunifying the children with Kulman.1 Second, the therapy order required
Giroux to obtain a mental health assessment:


             Giroux] shall obtain a mental health assessment at Comprehensive Life Center or
             another center with a sliding scale. Full collateral information shall be provided by
             the GAL....     It is anticipated the assessment will be free and if not [ Grioux] may
             bring motion for instructions.

Clerk'   s   Papers ( CP)   at   11.   Giroux moved to revise the therapy order. On May 2, 2013, the

superior court entered a revision order that allowed the GAL to select a therapist for the children

other than Kautz. The GAL subsequently provided the names of four therapists approved by

Kulman' s insurance for Giroux to choose from.


B.           Order Setting Deadline To Comply

             On May 31, 2013, the superior court heard both Giroux' s motion to continue the date of

the evidentiary hearing to modify the parenting plan and Kulman' s motion to subpoena Giroux' s



 1 It appears the commissioner and the GAL wanted to enroll the children with a new therapist
because       they   wanted a neutral     therapist   for the   reunification   counseling.
No. 45722 -9 -II



medical records. .    0n that date, the superior court addressed Giroux' s failure to comply with the

therapy order. Giroux argued that she did not enroll the children with one of the four GAL -

approved therapists because she did not want to break the continuity of the children' s therapy by

enrolling them with a new therapist. Giroux argued she could not afford to obtain her own

mental health assessment:


        MS. GIROUX]: It'          s not a matter of, you   know —how am I supposed to do what I
       can'   t   financially do? I mean, let' s be reasonable.
        THE COURT]:           There are resources within our community. I believe you can get
       one on a      low-income basis. Comprehensive Mental Health was suggested. There
       is   Community         Health. There'    s   Greater Lakes Mental Health.       There' s Good
        Samaritan Behavioral Health.            There   are resources within our   community.    You
       need to access them.

        MS. GIROUX]: I have called. I wrote every single person' s name down and phone
       number, and         I don' t have —I   don' t have the money.
        THE COURT]:            If it isn' t done by 30 days from today, then we' ll address
       why....
        MS. GIROUX]:           Okay. I' ll get all of my bank receipts and show you.

Verbatim Report       of   Proceedings ( VRP) ( May 31, 2013)     at   23. The superior court entered an


order giving Giroux 14 days to initiate therapy for the children with one of the GAL -approved

therapists and 30 days to begin the process of obtaining a mental health examination, which

could be with a provider with a sliding fee scale as long as the GAL had collateral input

 deadline order).


C.      Contempt Order and Review Hearing Order

        Kulman filed a contempt motion in July of 2013 because Giroux had neither enrolled the

children with a GAL -approved therapist nor obtained a mental health assessment. Giroux again

argued that she did not want to enroll the children with a GAL- approved therapist because it

would break the continuity of her children' s therapy.




                                                          3
No. 45722 -9 -II



       The    commissioner   heard the      motion on     November 21, 2013.           Giroux had neither enrolled


the children with a GAL -approved therapist nor obtained a mental health assessment. The

commissioner entered a contempt order against Giroux, which found Giroux had intentionally

failed to comply with the March 27 therapy order and the May 31 deadline order. The contempt

order also ruled that Giroux had the present ability to comply with these orders, but lacked the

willingness to comply. The contempt order also stated the following:

        The [ commissioner] sentences Anne Giroux to an indeterminate jail sentence. The
        sentence is suspended until 12/ 4/ 2013, if Anne Giroux does not purge contempt
             then she shall report to the Pierce County Jail on 12/ 4/ 2013 .... Bail will be
         500 cash.




        The contemnor may purge the contempt as follows:

        By scheduling her mental health assessment with collateral input from GAL and
        enrolling the   children    in [ therapy]       with [   five    named   therapists].   This shall be
        accomplished by 12/ 4/ 2013.


        The   court shall review    this   matter ...     on'...    12/ 5/ 13 ....   The jail shall transport
        Anne Giroux ...     if she is in custody at the time of the review.

CP at 279 -80.


        Giroux did not comply by December 4, 2013, but avoided confinement by paying $500

bail. At the December 5, 2013 review hearing, Giroux still had not complied. The commissioner

entered an order at the review hearing that stated:

        Contempt has not been purged. Anne Giroux is still unwilling to comply with the
        court' s order regarding re- unification [therapy].

        A   review   hearing is   set   for 12/ 10/ 2013 ....           The court orders that if proof of an
        appointment for re- unification [therapy] for Daniel Kulman and the children using
         one of five named therapists] is not provided [ Kulman] will have custody of the
        children and the mother will be incarcerated on 12/ 10/ 2013.




                                                            4
No. 45722 -9 -II



CP at 273 -74.


D.     Confinement Order and Release Order


       At the December 10, 2013 review hearing, Giroux had not complied. The commissioner

entered a confinement order:



       Based upon a finding of civil contempt Anne Giroux shall be incarcerated in the
       Pierce County Jail on 12/ 10/ 2013 for one day. There shall be a review hearing on
        12/ 11/ 2013.


       The Pierce       County    jail   shall   transport Anne Giroux ...   if bail has not been paid.
       Bail   shall   be   set at $   1, 000. 00 cash.


CP at 286. This confinement order contained no purge clause.


        At the December 11, 2013 review hearing, after Giroux had spent one day in

confinement, Giroux still had not complied. Giroux' s attorney argued the confinement had

become more punitive than coercive because jail would not convince Giroux to comply with the

order to enroll her children with another therapist. Kulman stated that he had contacted one of

the five therapists in the order, and had scheduled potential therapy appointments for the

children. Kulman requested residential time with the children to take them to these

appointments.




        Instead, the commissioner called the GAL and scheduled an appointment between the

GAL and the children. The commissioner entered a release order that released Giroux from

custody and scheduled another review hearing:

        Anne Giroux shall be released on condition that she comply with the court' s order
        to allow GAL to interview the children on Monday.

                   Anne Giroux          shall appear at a review   hearing   on   12/ 20/ 2013 ....   Anne

        Giroux shall initiate the previously ordered mental health assessment before the
        review date.




                                                            5
No. 45722 -9 -II



                   The      GAL      shall   interview the            children      at [   Giroux'   s]     residence   on

           12/ 16/ 2013.


                   Anne Giroux shall take all reasonable actions necessary to implement the
           residential time of [Kulman].


CP   at   289 -91. The commissioner stated she would incarcerate Giroux again if she did not allow


the children to be interviewed by the GAL on December 16. Giroux appeals only the November

21, 2013 contempt order, and does not appeal the December 10 confinement order.

                                                         ANALYSIS


           Giroux argues that the superior court erred by entering a punitive contempt order. We

disagree.


           We review findings of contempt and the appropriateness of contempt sanctions for abuse

of   discretion. State      v.   Berty,   136 Wn.   App.   74, 83, 147 P. 3d 1004 ( 2006).                 But we review


whether a court' s contempt sanction is punitive de novo as a question of law. See In re Interest

of Silva, 166 Wn.2d 133, 140 -41, 206 P. 3d 1240 ( 2009);                      State v. Salazar, 170 Wn. App. 486,

492 -93, 291 P. 3d 255 ( 2012); In           re   Interest of M.B.,     101 Wn. App. 425, 454, 3 P. 3d 780 ( 2000).

Because Giroux argues that the contempt sanction is punitive, our review is de novo.

           RCW 7. 21. 010( 1)( b) defines "         contempt of       court"   as   intentional "[        d] isobedience of any

lawful judgment, decree,            order, or process of    the   court."      Washington statutes distinguish


between criminal contempt sanctions that are punitive and civil contempt sanctions that are


remedial.     State   v.   TA. W., 144 Wn.        App.   22, 24, 186 P. 3d 1076 ( 2008);             see In re Marriage of

Didier, 134 Wn. App. 490, 500 -02, 140 P. 3d 607 ( 2006).

           A remedial sanction is " imposed for the purpose of coercing performance when the

contempt consists of the omission or refusal to perform an act that is yet in the person' s power to




                                                                  6
No. 45722 -9 -I1



perform."       RCW 7. 21. 010( 3).          The remedial contempt power given a court is intended to operate


to coerce a party to comply with an order or judgment. A remedial contempt sanction will stand

if it served coercive, rather than punitive, purposes. Didier, 134 Wn. App. at 501 -02.

          Conversely, a punitive sanction is " imposed to punish a past contempt of court for the

purpose of      upholding the authority             of   the   court."   RCW 7. 21. 010( 2).       Before a punitive contempt


sanction is imposed, a prosecutor must file a criminal complaint and the contemnor must receive

  those due      process rights extended            to   other criminal      defendants. '       See RCW 7. 21. 040( 2)( a);


Smith    v.   Whatcom     County      Dist. Court, 147 Wn.2d 98, 105, 52 P. 3d 485 ( 2002) ( quoting                         In re

Pers. Restraint of King, Dept. of Soc.                   and    Health Sery 's., 110 Wn.2d 793, 800, 756 P. 2d 1303


 1988)).      Because no criminal complaint or criminal due process existed here, the contempt

sanction must be remedial to stand.


           Whether a contempt sanction was remedial or punitive turns on " the substance of the


proceeding       and    the   character of    the   relief     that the proceeding    will afford."         King, 110 Wn.2d at

799.    In determining whether a particular sanction was remedial or punitive we do not look to the

subjective      intent   of   the   court.   M.B.,   101 Wn. App. at 439. Instead we look to the actual

character of      the   relief.     101 Wn.    App.      at    439. " If the purpose of the sanction is to coerce


compliance with a lawful court order, and a contemnor is jailed only so long as [ she] fails to

comply        with such order,       then the     contempt        is [ remedial]."   King,    110 Wn.2d       at   799. But' "[ i] f the


purpose of the contempt sanction is punitive and results in a determinate jail sentence, with no


opportunity for the           contemnor      to   purge       himself of the   contempt,     it is [   punitive]."    110 Wn.2d at


799. "    As long as there is an opportunity to purge, the fact that the sentence is determinate does




                                                                         7
No. 45722 -9 -II



not render   the   contempt punitive."        M.B.,    101 Wn. App. at 439. But the opportunity to purge and

obtain release must     be   present " at all    times. ".   Didier, 134 Wn. App. at 504.

                         I. INABILITY TO COMPLY WITH THE PURGE CONDITION


         Giroux argues that the November 21, 2013 contempt order was punitive because Giroux


was unable to comply with the purge condition. We disagree.

         Confinement ceases to be coercive once the contemnor lacks the ability to comply with

the order she is charged with violating. King, 110 Wn.2d at 804. Continuing a person' s

confinement for contempt for not performing an act she can no longer perform makes the

sanctions   purely   punitive.    110 Wn.2d at 804. Inability to comply is an affirmative defense to

remedial contempt, and a contemnor bears the burden of production and persuasion in presenting

such a   defense. 110 Wn.2d        at   804. "   The contemnor must offer evidence as to [ her] inability to

comply    and   the evidence    must    be   of a   kind the   court   finds   credible."   110 Wn.2d at 804.


A.       Enrollment Requirement


         Giroux argues that she was unable to comply with the requirement to enroll her children

with a GAL -approved therapist because she believed such enrollment would break the continuity

of her children' s therapy. We disagree.

         Giroux has offered no evidence that she was unable to comply with the contempt order.

Giroux' s belief that compliance with the order was contrary to her children' s best interest is

evidence of Giroux' s unwillingness to comply, not her inability to comply. Thus, Giroux failed

to meet her burden of proving she was unable to comply with the requirement to enroll her

children with a GAL -approved therapist.


B.       Mental Health Evaluation




                                                                8
No. 45722 -9 -II



       Giroux argues that she was unable to comply with the requirement to schedule a mental

health evaluation because she could not afford it. We disagree.


       Here, the therapy order stated that if the mental health evaluation was not free, Giroux

could bring a motion for instructions. Both the therapy order and the deadline order stated that

Giroux could obtain an assessment at a center with a sliding fee scale. The superior court

provided a number of potential centers she could approach.



        While Giroux asserted that she was unable to pay because she had no money, and that she

had made calls to the centers, she did not sufficiently explain why a sliding scale would have

prevented her from scheduling a mental health evaluation that was free. Moreover, she did not

make a motion for instructions, as provided for in the order. Thus, Giroux failed to meet her

burden of production and persuasion to prove that she was unable to comply with the

requirement to schedule a mental health evaluation for herself due to her inability to pay.

C.      Inability To Comply During Confinement

        Giroux argues that the December 10 confinement order that she did not appeal made the

November 21 contempt order punitive because she was unable to schedule a mental health

evaluation or enroll her children with a GAL -approved therapist during her one day of

confinement. But the record contains no facts supporting that Giroux was unable to comply with

the purge condition while in jail. Thus, Giroux failed to meet her burden of showing that she

was unable to comply with the purge condition during her confinement.

     II. ONE DAY OF DETERMINATE CONFINEMENT THAT COMPLIANCE COULD NOT SHORTEN

        Giroux argues that the December 10, 2013 confinement order she did not appeal made

the November 21, 2013 contempt order punitive by imposing a determinate one day of



                                                 9
No. 45722 -9 -II



confinement that Giroux could not shorten by complying with the contempt order' s purge

condition. We disagree.


       Here, the November 21 contempt order imposed indeterminate confinement, but


suspended that indeterminate confinement. The December 10 confinement order lifted the


suspension on this indeterminate confinement for one day, pending another review hearing. The

release order reinstated the suspension on the indeterminate confinement.


        Assuming without deciding that the confinement order imposed a determinate sentence

of one day, the record supports that this sanction was coercive rather than punitive. First,

because the confinement order was merely lifting the suspended confinement from the contempt

order, the contempt order' s purge clause always applied. Thus, Giroux could have secured her

release at any time, even during the one day of confinement, by complying with the purge

condition. Cf.Didier, 134 Wn. App. at 503 ( contempt order imposing 30 days of confinement

was punitive because it imposed confinement and stated that if contemnor complied during the

confinement period, commissioner "   may   entertain" a motion   to modify the   order).   Second,


looking to the character of the relief that the contempt proceeding would afford, Giroux had not

complied with the order prior to the imposition of one day of confinement, and the superior court

immediately followed the one day of confinement with another review hearing to determine
whether Giroux had complied. This shows that the relief was designed to quickly coerce future

compliance that had not yet occurred, rather than to punish past noncompliance.


        Thus, looking at the substance of the contempt proceeding and the character of the relief

that the contempt proceeding would afford, the sanction' s purpose was to coerce compliance

with a lawful court order, not to punish a past act by imposing a determinate jail sentence with



                                                 10
No. 45722 -9 -II



no opportunity for the contemnor to purge herself of the contempt. Therefore, we hold, that the

confinement order did not make the contempt order punitive.2
                                                    ATTORNEY FEES


         Kulman requests attorney fees on appeal under RCW 4. 84. 185 for defending a frivolous

appeal, and under       RCW 26. 09. 160( 1) -(      2) for prevailing in an appeal of a contempt order. We

deny Kulman' s requests.

         RCW 4. 84. 185 allows attorney fees for having to defend frivolous appeals. Fernando v.

Nieswandt, 87 Wn.            App.   103, 112, 940 P. 2d 1380 ( 1997). An        appeal   is frivolous if ' there are


no debatable issues upon which reasonable minds could differ and when the appeal is so totally

devoid   of   any    merit   that there   was no reasonable    possibility   of reversal. "'   87 Wn. App. at 111-

12 ( quoting    Mahoney        v.   Shinpoch, 107 Wn.2d 679, 691, 732 P. 2d 510 ( 1987)). Here, whether a


determinate jail sentence of one day is punitive or remedial is a debatable issue upon which

reasonable minds could differ, and the appeal was not so totally devoid of any merit that there

was not a reasonable possibility of reversal. Thus, the appeal is not frivolous, and Kulman is not

entitled to fees under this provision.

          RCW 26. 09. 160( 1) -(        2) allows attorney fees for filing a motion to initiate a contempt

action   to   coerce compliance with an order "          establishing     residential provisions   for   a child."   RCW


26. 09. 160( 1) -(   2) applies only to contempt orders initiated to coerce compliance with those


2
    Giroux    argues   that   certain   terms   such as " sentenced," "   bail," and " incarceration" in the
contempt order shows the commissioner' s punitive thinking, and therefore reveal that the
contempt was punitive. Br. of Appellant at 14. But the commissioner' s word choice does not
control our analysis. This is particularly true because allowing the commissioner' s punitive
thinking to control the analysis would look to the commissioner' s subjective intent, which we do
not   do. See M.B.,      101 Wn. App. at 439.



                                                              11
No. 45722 -9 -II



particular provisions of an order that established residential provisions for a child. See In re


Marriage ofRideout, 150 Wn.2d 337, 358 -59, 77 P. 3d 1174 ( 2003).

          Here, Giroux was held in contempt for failing to comply with provisions to enroll her

children with a GAL -approved therapist and to schedule a mental health evaluation for herself.

These provisions did not establish residential provisions for a child. Thus, we hold that Kulman

is   not entitled   to attorney fees   on appeal under   RCW 26. 09. 160( 1) -( 2).


          We affirm.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




                                                          12
