                                                                    FILED
                                                                 MARCH 10, 2020
                                                           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

EVARISTO JAVIER SANCHEZ,                     )         No. 36279-5-III
                                             )
                     Appellant,              )
                                             )
       v.                                    )         PUBLISHED OPINION
                                             )
HOPE V. ROSE,                                )
                                             )
                     Respondent.             )

       PENNELL, A.C.J. — Washington’s judges have statutory authority to control their

courtrooms by summarily sanctioning individuals for direct contempt. This is an awesome

power, carrying the potential for incarceration and fines with few procedural protections.

As such, it must be exercised with restraint. Summary contempt is available only when a

judge is a direct witness to an act of contempt. Simply receiving evidence of contempt is

insufficient.

       Here, the superior court held Evaristo Sanchez in contempt after Mr. Sanchez

admitted noncompliance with prior court orders. This was not an act of direct contempt,

occurring in open court; it was merely an admission of prior contempt. As such, the

superior court lacked statutory authority to impose summary contempt sanctions. The

order of contempt is reversed and vacated.

                                         FACTS

       The hearings in Benton County Superior Court leading to this appeal were
No. 36279-5-III
Sanchez v. Rose


conducted by three different judges and span two separate causes of action. 1

       On July 3, 2018, Evaristo Sanchez petitioned for an order of protection against

his wife, Hope Rose. A temporary order was issued and a full hearing on the petition was

scheduled for July 13.

       On July 10, 2018, Ms. Rose petitioned for dissolution of marriage. The next day,

she obtained a temporary order in the dissolution action. The order required, among other

things, that Mr. Sanchez remit a support payment of $5,000, and another $5,000 in

attorney fees. The support payment was to be made by the close of business on the date of

service. The attorney fee payment was due by July 13. There is no proof of service of the

temporary order in the record on review, although Mr. Sanchez later averred he was

served with the order on July 12, at approximately 5:15 p.m. Up to this point, the same

judge handled all matters between Ms. Rose and Mr. Sanchez.

       On July 13, a second judge held a hearing in the protective order proceeding. Both

Mr. Sanchez and Ms. Rose were present. Another temporary order was issued and a full

hearing rescheduled for July 20. The July 13 temporary order noted Ms. Rose was to be

granted access to the family home to obtain clothing, personal items, a horse trailer and a



       1
        The protective order proceeding was filed under cause number 18-2-1678-03,
and the dissolution action was filed under cause number 18-3-0058-03.

                                             2
No. 36279-5-III
Sanchez v. Rose


truck to the trailer. The July 13 hearing included a discussion of the $10,000 in payments

that had been ordered in the dissolution action. Mr. Sanchez represented he would make

the payments by the close of business.

       On July 16, Ms. Rose filed a motion for contempt in the dissolution proceeding.

She alleged Mr. Sanchez had neither made any of the required payments nor allowed her

access to the home to retrieve her personal and other items. Ms. Rose requested the court

impose punitive and remedial sanctions. The record does not reveal whether the motion

was served on Mr. Sanchez. Mr. Sanchez did not file a written response. There is no

notice of hearing in the record on review.

       The parties appeared on July 20 for the previously scheduled protective order

hearing. A third judicial officer presided over the hearing. The court began by asking

Mr. Sanchez if he had paid the $10,000 previously ordered in the dissolution action. Mr.

Sanchez stated he had not. The court then ruled Mr. Sanchez was in summary contempt,

pursuant to RCW 7.21.050. 2 The court certified it had “seen or heard” the acts

constituting contempt by virtue of the statements made in open court. Report of

Proceedings at 14. The court also indicated it had listened to a recording of the July 13



       2
         In addition to the failure to pay, the court held Mr. Sanchez in contempt for
failing to allow Ms. Rose access to the home to retrieve personal and other items.

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No. 36279-5-III
Sanchez v. Rose


hearing, during which Mr. Sanchez had promised to pay. The court imposed punitive

sanctions of one day in jail and a $500 fine. The court also imposed remedial sanctions of

additional jail time and daily $500 fines, which could be purged by payment of the

outstanding $10,000. The court’s oral rulings were memorialized in a written order.

       Mr. Sanchez was taken into custody after the hearing. His attorney remitted the

payment that day, purging the remedial sanctions. Mr. Sanchez brings this timely appeal

from the order on findings of summary contempt.

                                       ANALYSIS

       Summary contempt proceedings are governed by RCW 7.21.050. A judge may

summarily impose remedial or punitive sanctions “upon a person who commits a

contempt of court within the courtroom if the judge certifies that he or she saw or heard

the contempt.” RCW 7.21.050(1). Remedial sanctions are forward-looking and are

imposed “for the purpose of coercing performance.” RCW 7.21.010(3). Punitive

sanctions are those “imposed to punish a past contempt of court.” RCW 7.21.010(2).

Summary contempt is a unique, streamlined procedure. It does not require prior notice or

a hearing on the merits; sanctions are immediate and the contemnor is entitled only to




                                             4
No. 36279-5-III
Sanchez v. Rose


speak in mitigation. 3 The purpose of summary contempt is to preserve “order” and protect

“the authority and dignity of the court.” RCW 7.21.050(1).

       When contemptuous conduct occurs outside the courtroom, statutory summary

contempt is unavailable. See State v. Jordan, 146 Wn. App. 395, 403-04, 190 P.3d 516

(2008); State v. Winthrop, 148 Wash. 526, 532, 269 P. 793 (1928). 4 Instead, other statutes

come into play, requiring notice and a hearing. RCW 7.21.030(1), .040.

       The superior court here lacked statutory authority to impose summary contempt

sanctions. The acts of contempt—nonpayment of financial obligations and failure to

facilitate access to property—did not occur during the court hearing; they occurred

before. While Mr. Sanchez may have admitted to contemptuous conduct during his

hearing, his truthful answer to the court’s inquiry was merely evidence of contempt.

It was not itself contempt. In re Marriage of Nielsen, 38 Wn. App. 586, 588, 687 P.2d

877 (1984) (“[A] contemptuous act is indirect [and therefore outside the presence of the


       3
         This requirement can be excused in “compelling circumstances.”
RCW 7.21.050(1).
       4
         A trial court has inherent contempt authority in addition to its statutory contempt
powers. However, a court may not resort to inherent contempt unless “‘legislatively
prescribed procedures and remedies are specifically found inadequate.’” In re
Dependency of A.K., 162 Wn.2d 632, 647, 174 P.3d 11 (2007) (plurality opinion)
(quoting Mead Sch. Dist. No. 354 v. Mead Educ. Ass’n, 85 Wn.2d 278, 288, 534 P.2d 561
(1975)). This case does not involve inherent contempt. Our analysis is limited solely to
the court’s statutory authority.

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No. 36279-5-III
Sanchez v. Rose


court] even though the offender has admitted the act in open court.”); Winthrop, 148

Wash. at 532 (“[The] appellant’s conduct . . . occurred away from and out of the presence

of the court, and therefore . . . was not subject to [summary] discipline and punishment.”).

The superior court was thus limited to pursuit of nonsummary contempt sanctions under

RCW 7.21.030 and .040.

       This case is distinguishable from In re Contempt Proceedings of Salvesen,

78 Wn.2d 41, 469 P.2d 898 (1970). There, Thelma Salvesen repeatedly refused to appear

before a secret session of the grand jury without the presence of her attorney. Id. at 43-45.

The matter was presented before a judicial officer and the judge ordered compliance with

the grand jury subpoena. Id. at 43-44. After the grand jury reconvened, Ms. Salvesen

again refused to testify. Id. at 44. Upon reappearance before the presiding judge,

Ms. Salvesen not only admitted she had refused to testify, but she stated she would

continue defying the court’s instructions regardless of any change in circumstances or

court order. Id. The presiding judge then found her in contempt and summarily issued

sanctions. Id. 44-45. The Supreme Court affirmed, explaining the circumstances qualified

for summary contempt because Ms. Salvesen had stated her intent to continue defying the

court’s authority in the presiding judge’s presence. Id. at 45-46.




                                              6
No. 36279-5-111
Sanchez v. Rose


       Unlike Ms. Salvesen, Mr. Sanchez did not state he would continue to disobey the

court's orders. Thus, no act of defiance occurred in the court's presence. While Mr.

Sanchez may have engaged in contemptuous conduct before coming to court, he did not

do anything to disrupt the proceedings while the court was in session. Thus, summary

contempt proceedings were unwarranted.

                                     CONCLUSION

       The superior court lacked authority to issue summary contempt sanctions under

RCW 7.21.050. We therefore vacate the contempt order and dismiss the sanctions

imposed without prejudice. Mr. Sanchez's request for attorney fees is denied, as it lacks

legal or factual support. See RCW 7.21.030(3) (In nonsummary contempt proceedings,

the contemnor may be required to pay for losses, including attorney's fees.); RCW

26.09 .140 (The court has discretionary authority to award attorney fees in a dissolution

proceeding under chapter 26.09 RCW based on comparative financial need.).



                                          Q
                                          Pennell, A.CJ.
WE CONCUR:




                                          Fearing, J.

                                             7
