      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ELEANOR M. RANDECKER-PEASE,                       UNPUBLISHED OPINION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
No. 71327-2-1/2


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
No. 71327-2-1/3


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.
No. 71327-2-1/4


       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.
No. 71327-2-1/5


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).
No. 71327-2-1/6


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
No. 71327-2-1/7


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." \±
No. 71327-2-1/8


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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