                                                                                  FILL
                                                                          COUNT OF APPEALS DIV I
                                                                           STATE OF WASHINGTON

  IN THECOURT OF APPEALS OF THE STATE OF WAN-11166TOrN:1                                         117
 In the Matter of the Marriage of
                                                       No. 75259-6-1
 DARREL 'RILEY,
                        Appellant,                     DIVISION ONE

        and                                            UNPUBLISHED OPINION

 SUZETTE RILEY,

                        Respondent.                    FILED: August 21, 2017

        TRICKEY, J. — Darrel Riley's parenting plan established a residential

 schedule for his two daughters, Arianna and Madeleine.1 Under the plan, his two

 daughters were to reside with their mother, Suzette Riley, the majority of the time.

 Darrel appeals the trial court's order finding him in contempt for noncompliance

 with the parenting plan and imposing various remedial sanctions based on that

 contempt'finding.

        We conclude that the trial court did not err by finding Darrel in contempt.

 Arianna's recalcitrance did not excuse Darrel's noncompliance because Darrel did

 not make, reasonable efforts to overcome her resistance to living with Suzette. We

 also conclude that the trial court did not exercise its inherent contempt powers.

        Instead, we conclude that it exercised its statutory contempt authority after

 making the appropriate finding that certain, specific, statutorily prescribed

 sanctions would not be effective. As to the specific sanctions the court imposed,




'We refer to all members of the Riley family by their first names in order to avoid confusion.
No. 75259-6-1/2

we conclude that they do not amount to a modification of the parenting plan and

were not abuses of the court's discretion. Therefore, we affirm.

                                      FACTS

       In January 2010, Darrel and Suzette separated after being married for

decades. They have two daughters, Arianna and Madeleine, who were 10 years

old and 7 years old, respectively, at the time of the separation. Working with a

mediator, Darrel and Suzette agreed to a parenting plan in 2011.

       In May 2015, on Suzette's petition, the court entered a modified parenting

plan, noting that Darrel's abusive use of conflict created the danger of serious

damage tq the children's psychological development. The modified plan provides

that both !daughters shall reside with Suzette during the week and reside with

Darrel or Suzette on alternating weekends;the girls shall share one meal or activity

with Darrel between his weekend visits; and, no matter which parent they are

staying with, have "reasonable, unmonitored telephone and email access to either

parent or any extended family members."2

      The plan gives Suzette sole decision-making authority for most major

decisions, and prohibits both parents from discussing the legal proceedings with

the children. It also orders the parents to "cooperate and support both children to

be engaged in therapy."3 The plan requires the parties to submit disagreements

to a case,manager, but preserves the right to superior court review of all disputes.

       In August 2015, Arianna left Suzette's home and moved in with Darrel full

time. In October 2015, with Arianna's assistance, Madeleine also left Suzette's


2 Clerk's papers(CP)at 28-29.
3 CP at 33.

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No. 752591-6-1 /3

home to liVe with Darrel.

       In April 2016, Suzette obtained an order of contempt against Darrel for

failing to abide by the modified parenting plan. Both daughters had little to no

contact with Suzette between their moves and the time she brought the motion for

contempt.:

       Darrel asserted that the children are opposed to returning to live with

Suzette, and that "it would not work to force them, in particular Madeleine, to

return." The case manager appointed by the court reported that Darrel "does not

believe that either Arianna or Madeleine should return to their mother's home."5

The case manager also reported that Darrel supported Arianna's "extreme

position" of estrangement from Suzette and Madeleine's refusal to work through

her problems with her mother.6

        The court found that Darrel had failed to comply with the residential

schedule in bad faith, repeatedly discussed the ongoing litigation with his children,

and intentionally failed to follow the case manager's recommendations that he

support Madeleine's return to counseling. The court ordered sanctions, including

that (1) the daughters have makeup residential time with Suzette, during which

Darrel could not have any contact with his daughters;(2) the family participate in

a Family Bridges workshop, with the cost split between Suzette and Darrel; and

(3) after the workshop, both parents comply with the recommendations of any

aftercare ;professionals.



4 CP at 17,90.
5 CP at 1803.
6 CP at 1804-05.

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No. 752596-1/4

       The court provided that, once Suzette's makeup time concluded, it would

determine "the conditions, timing and nature of resumption of contact between the

children" and Darre1.7 It also allowed Darrel to purge his contempt by complying

with the contempt order, the parenting plan, and all of the case manager's

recommendations.

       Darrel appeals.8

                                       ANALYSIS

                                        Contempt

       Darrel argues that the trial court erred by finding him in contempt for

violating the residential parenting plan's provision regarding Arianna's living

arrangements because he did not have the ability to comply.8 Specifically, Darrel

argues that he could not overcome Arianna's resistance to living with Suzette. We

conclude that the contempt finding is appropriate based on Darrel's failure to make

reasonable efforts to abide by the parenting plan.

       When a parent fails to comply with a residential parenting plan in bad faith,

the court shall find the parent in contempt of court. RCW 26.09.160(2)(b). For

purposes;of determining whether the court should find a parent in contempt, "the

parent shall be deemed to have the present ability to comply with the order




7 CP  at 707.
8  Darrel moves this court to strike all references in Suzette's response brief and
supplemental designation of clerk's papers that relates to events occurring after the court's
contempt Order. Because the Court of Appeals considers only evidence that was before
the trial court at the time a decision was made, we will not consider those events. See
RAP 9.1; 9.11. Accordingly, we disregard several pages of Suzette's statement of the
case in her response brief and numerous clerk's papers.
9 It does not appear that Darrel is challenging the finding of contempt with respect to
Madeleine's living arrangements.
                                             4
No. 7525976-I /5

establishing residential provisions unless he or she establishes otherwise by a

preponderance of the evidence." RCW 26.09.160(4). A noncomplying parent

bears the burden of showing that he "lacked the ability to comply with the

residential provisions of a court-ordered parenting plan or had a reasonable

excuse for noncompliance." In re Marriage of Rideout, 150 Wn.2d 337, 352-53,

77 P.3d 1174 (2003).

       1\A/here a child resists court-ordered residential time and where the

evidence establishes that a parent either contributes to the child's attitude or fails

to make reasonable efforts to require the child to comply with the parenting plan

and a court-ordered residential time, such parent may be deemed to have acted in

tad faith'Ifor the purposes of RCW 26.09.160(1)." Rideout, 150 Wn.2d at 356-57

(emphasis added).

       An appellate court reviews whether the trial court's findings of fact on

contempt I are supported by substantial evidence. Rideout, 150 Wn.2d at 352.

"Substantial evidence is that which is sufficient to persuade a fair-minded person

of the truth of the matter asserted." In re Marriage of Katare, 175 Wn.2d 23, 35,

283 P.3d i546 (2012). Unchallenged findings of fact are verities on appeal. See

Rideout, 150 Wn.2d at 353.

       Here,the courtfound Darrel in contemptfor failing to abide by the residential

parenting plan. It is undisputed that Arianna was living with Darrel when, under

the parenting plan, she should have been residing with Suzette. Therefore, Darrel

was not complying with the parenting plan. To avoid contempt, Darrel had to show

by a preponderance of the evidence that, because of Arianna's recalcitrance, he


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No. 75259-6-1 /6

was unable to comply with the parenting plan or that the court should excuse his

noncompliance.

        The trial court found that Darrel refused to comply with the plan in bad faith

and noted that he was not making reasonable efforts to comply. Specifically, the

court found that the fact that Arianna and Madeleine had lived with Darrel since

they moved out of Suzette's house, rather than on their own, was "evidence that

the[ir] father could have caused the children to follow the residential schedule."°

The court:also found that Darrel's "statements that he was complying with the

parenting plan by merely taking his children to [Suzette's] door and not making

additional efforts to encourage his children to reside with their mother or encourage

his children to attend counseling further evidence[d] his lack of efforts to comply

with the parenting plan."11 Both findings demonstrate that Darrel did not carry his

burden of,showing that he made reasonable efforts to comply with the parenting

plan.

        Darrel does not challenge any of the trial court's findings of facts, therefore,

they are verities. Additionally, Darrel stated in his declaration that Suzette "has the

responsibility to get the kids to obey the court order, as she has the sole decision

making" authority.12 That belief strongly implies that Darrel did not understand that

he had an obligation to make good faith efforts to comply with the plan. Thus,

Darrel's own statements, combined with the court's unchallenged findings about

his actions, provide substantial evidence to support the court's determination that



'° CP at 703.
11 CP at 703(emphasis added).
12 CP at 279.

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No. 752596-1 /7

Darrel failed to comply with the parenting plan in bad faith.

        Darrel appears to believe that his noncompliance is excused if he

establishes that his reasonable efforts would have been futile. But that is not the

standard articulated in Rideout, as quoted above. Darrel was obligated to make

reasonable efforts to require his children to reside with Suzette, even if he believed

those efforts would not be successful. We will not disturb the trial court's finding

that Darrel did not fulfill that obligation.13

                                   Authority to Sanction

        Darrel argues that the trial court erred because it relied on its inherent

sanctioning authority before exhausting its statutorily granted contempt power.14

Because the general civil contempt statute grants the trial court broad discretion

to fashion remedial sanctions when it makes a finding that specific statutorily

prescribed sanctions will be ineffectual, as it did here, we disagree.

        If i court finds that a parent has failed to comply with provisions of an order

establishing a residential parenting plan in bad faith, the court "shall find the parent

in contempt of court." RCW 26.09.160(2)(b). The court must then order the



13 Suzette and Darrel also dispute whether there is enough evidence in the record to show
that Darrel was the source of Arianna's resistance to living with Suzette. Because we
conclude that substantial evidence supports the court's finding that Darrel did not make
reasonable efforts to require Arianna to live with Suzette, we do not reach this question.
14 For the first time in his reply brief, Darrel argues that the trial court lacked the authority
to impose sanctions under the general contempt statute, RCW 7.21.030, because it should
have used only the specific contempt statute for violations of the residential parenting plan
provisions,, RCW 26.09.160. We do not consider this argument because Darrel is raising
it too late and because it directly conflicts with arguments he made in his opening brief.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,809,828 P.2d 549(1992); see,
e.q., Br. of Appellant at 13-14.
         Moreover, RCW 26.09.160(6) explicitly states that the court's authority to impose
remedial sanctions under the statute is "in addition to any other contempt power the court
may possess." Suzette sought sanctions under both statutes. CP at 60.
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No. 752591.6-I /8

noncomplying parent to "provide the moving party additional time with the child,"

"pay.. . all court costs and reasonable attorneys' fees incurred as a result of the

noncompliance," and "a civil penalty" of at least $100. RCW 26.09.160(2)(b)(i)-

(iii). These powers are in addition to "any other contempt power the court may

possess." RCW 26.09.160(6).

        Those other contempt powers include a general statutory power to impose

remedial sanctions for contempt. See RCW 7.21.030(2). The statute authorizes

the court to imprison the contemnor, order the contemnor to pay a forfeiture of up

to $2,000 per day while the contempt continues, issue an "order designed to

ensure compliance with a prior order of the court," and impose "[a]ny other

remedial Sanction . . . if the court expressly finds that those sanctions would be

ineffectual to terminate a continuing contempt of court." RCW 7.21.030(2)(a)-(d).

        An appellate court reviews the trial court's authority to impose sanctions de

novo as e matter of law.15 In re Interest of Silva, 166 Wn.2d 133, 140, 206 P.3d

1240(2009).

        Here, the trial court imposed sanctions on Darrel under both the general

contempt statute and the specific contempt statute for parents who fail to comply

with an Order establishing residential provisions. It expressly found that "the

remedial sI anctions set forth in RCW 26.09.160 and RCW 7.21.030, on their own,

will be ineffectual to terminate [Darrel's] continuing contempt of court."16 That is



15 Suzette argues that the appropriate standard of review is an abuse of discretion. As
discussed below, this court reviews the trial court's choice of which sanctions to impose
for an abuse of discretion, but that is a different question than whether the trial court lacked
the authority to impose sanctions.
16 CP at 705.

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No. 7525976-1 /9

exactly the finding the statute requires before the court may impose sanctions

under RCW 7.21.030(d).

       Darrel argues that the trial court had to try to coerce compliance by

imprisoning him or fining him $2,000 a day before it could impose other sanctions.

He relies on Silva, which established that a court must "try all statutory contempt

sanctions and specifically find them ineffective" before it exercises its inherent

authority. !166 Wn.2d at 144. But Silva is inapposite because it applies only to the

court's inherent contempt power, which "is separate from statutorily granted

contempt power." 166 Wn.2d at 141. Nothing in the trial court's order indicates

that it relied on its inherent authority. And Darrel does not cite any authority to

support his argument that the trial court must try all statutory sanctions before

exercising its statutory authority to design sanctions that are tailored to the facts

before it.

       Accordingly, we conclude that the trial court had the legal authority to order

these sanctions.

                                     Sanctions

       Darrel argues that, even if the trial court had the authority to impose these

sanction, the trial court nevertheless abused its discretion by imposing remedial

sanctions that amounted to a modification of the parenting plan, were not in the

best interests of the children, and were not supported by necessary findings.

Because!the sanctions were designed to coerce Darrel to comply with the trial

court's order and related to his contemptuous behavior, we disagree.

       As quoted above, the trial court has broad powers to issue orders "designed


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No. 75259-6-1/ 10

to ensure compliance with a prior order" and fashion any other remedial sanction

when it finds that the statutorily prescribed sanctions will be ineffectual. RCW

7.21.030(2)(c), (d). A "remedial sanction" is "a sanction 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 perform." RCW 7.21.010(3).

       The contemnor must be able to purge contempt by performing affirmative

acts. In re Dependency of A.K., 162 Wn.2d 632, 646, 174 P.3d 11 (2007). When

the trial "Oourt grants a purge condition, the purge condition should serve remedial

aims, the qontemnor should be able to fulfill the proposed purge, and the condition

should be reasonably related to the cause or nature ofthe contempt." In re Interest

of M.B., 101 Wn. App. 425, 449-50, 3 P.3d 780 (2000)(quoting In re Marriage of

Larsen, 165 Wis.2d 679, 478 N.W.2d 18, 20-21(1992) (adopting Wisconsin's

approach to purge conditions)).

       This court reviews the trial court's imposition of sanctions for an abuse of

discretion. In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470

(1995); see Rhinevault v. Rhinevault, 91 Wn. App.688,694, 959 P.2d 687(1998).

"A trial court abuses its discretion if its decision is manifestly unreasonable or

based on untenable grounds or untenable reasons." In re Marriage of Littlefield,

133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). We address each of Darrel's

objections to specific provisions of the contempt order in turn.

       Contact and Visitation

       Darrel argues that the trial court abused its discretion by limiting his

visitation time and contact with his children. Specifically, he argues that the order


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No. 75259=6-I /11

amounted ;to a modification of the parenting plan, which the court did not support

with the required findings of adequate cause. Suzette responds that temporarily

and conditionally suspending Darrel's visitation was an appropriate contempt

sanction far Darrel's failure to comply with the parenting plan, not a modification of

that plan. We agree with Suzette.

       When the trial court finds a parent in contempt for failing to comply with the

residential provisions of a parenting plan, it must order the noncomplying parent to

provide the other parent additional time with the child, to make up the time missed.

RCW 26.09.160(2)(b)(i). The trial court may also postpone a parent's "visitation

rights indefinitely" if it is a "reasonable means to attempt a reconciliation between"

the children and the other parent. In re Marriage of Farr, 87 Wn. App. 177, 185,

940 P.2d 679 (1997).

       A modification "occurs when a party's rights are either extended beyond or

reduced from those originally intended in the decree." In re Marriage of Christel,

101 Wn. App. 13, 22, 1 P.3d 600 (2000). "Any modification of a parenting plan,

'no matter how slight,' requires the court to conduct an independent inquiry." In re

Parentage of Schroeder, 106 Wn. App. 343, 352, 22 P.3d 1280(2001)(quoting In

re Parentage of Smith-Bartlett, 95 Wn. App. 633, 640, 976 P.2d 173(1999)).

       In Farr, the trial court found a father in contempt for failing to comply with a

residential schedule and ordered that the older child spend makeup time with the

mother. ; 87 Wn. App. at 182. Initially, the court allowed the father to have

"reasonable telephone calls" with the child during that makeup time. Farr, 87 Wn.

App. at 182. But, after the father refused to follow the contempt order, the court


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No. 75259-6-1 /12

prohibited the father from having any contact with his children until the older child

made up the "lost residential time." Farr, 87 Wn. App. at 184. The father objected,

arguing that the sanction amounted to a modification of the parenting plan. Farr,

87 Wn. App. at 185. The Court of Appeals disagreed, holding that the court had

acted within its authority. Farr, 87 Wn. App. at 185-86.

       Here, the trial court ordered both daughters to make up residential time with

Suzette. The court also ordered that Darrel have "no contact whatsoever" with his

children during that makeup time. Rather than have Darrel's contact and visitation

with his children resume immediately after the makeup time concluded, the trial

court ordered that Darrel's visitation would be supervised and reduced, and

announced that it would determine the "conditions, timing and nature of the

resumption of contact?" The court clarified that it would base its determination on

the "cooperation of the children and the father with [the contempt order], with the

Family B idges program . . ., and with the Case Manager and after-care
          r
professional."18

       These sanctions are clearly intended to coerce Darrel's compliance with the

contempt, order and the parenting plan. The restrictions on Darrel's contact with

the children are conditional and designed to be temporary. Thus, they do not

amount to a modification of the parenting plan. We conclude that the trial court did

not abuse its discretion by ordering them.

       Darrel argues that it is unfair to condition his resumption of visitation on his

children's cooperation with the aftercare professionals and progress in the


17 CP at 7p7.
18 CP at 707.

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No. 75259-6-1 / 13

program. !Darrel's argument would be persuasive if the court were conditioning

Darrel's ability to purge his contempt on his daughters' progress in the Family

Bridges program. But the restrictions on Darrel's visitation with his daughters are

part of the contempt sanctions and, therefore, remain in place only while Darrel

remains in contempt. They are reasonable sanctions based on the court's finding

that Darrel contributed to his daughters' attitudes toward Suzette.

       Darrel also argues that the court abused its discretion by conditioning his

resumption of contact with his daughters on the opinions of the case manager and

aftercare 'professionals.   Relying on Schroeder, he contends that the order

amounts to a modification because it allows the case manager to prevent him from

resuming :contact with his daughters. See 106 Wn. App. at 352-53 (holding that a

trial court modified a parenting plan by allowing a guardian ad litem (GAL) to set

the visitation calendar without providing an opportunity for review by the court).

       As: described above, the contempt order is not a modification of the

parenting plan. Further, Schroeder is distinguishable because, here, the court

reserved the right to review the case manager's and aftercare professionals'

recommendations. The trial court may allow a professional it has appointed as

arbitrator to "suspend visitation as long as the parties have the right of court

review." : Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 807, 929 P.2d 1204

(1997).

       In sum,we conclude that the trial court did not abuse its discretion by limiting

Darrel's 8ontact with his daughters while Darrel remained in contempt of court.




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No. 75259-6-1/ 14

       CoUrtroom Appearance

       Darrel argues that the trial court acted contrary to Arianna's and

Madeleine's best interests when it ordered them to be brought into court to hear

that they Were ordered to participate in the Family Bridges workshop, and then had

them transported directly from court to the workshop. But Darrel does not seek

any specific relief for the claimed error. Accordingly, this issue is moot and we will

not review it. See State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012).

       Family Bridges

       Darrel argues that the trial court abused its discretion by ordering Arianna

and Madeleine to participate in the Family Bridges workshop program because it

is not accredited or affiliated with any educational institution. Suzette argues that

the trial court did not abuse its discretion because she provided the court with data

showing that Family Bridges has had a history of success. We agree with Suzette.

       Here, the court authorized Suzette to enroll her daughters in Family Bridges

and any "follow-up workshops or necessary meetings to assist the children in living

with [Suzette] and overcoming their estrangement."19 The court also ordered that

the "parties shall comply with any and all recommendations from any aftercare

professional or therapist working with the family after the Family Bridges

[w]orkshop."20

       Darrel does not dispute that Suzette's relationships with Arianna and

Madeleine were extremely strained. The trial court found that Darrel's bad faith

contributed to that estrangement and alienation. Therefore, it was reasonable for


19 CP at 706.
2° CP at 706.
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No. 75256-6-I /15

the court ,to require Darrel to participate in, and encourage his daughters to

participate in, a        program designed to repair Arianna's and Madeleine's

relationships with Suzette and help them work toward reunification.

          The court's approval of the Family Bridges workshop program specifically,

at Suzette's request, was also reasonable. Suzette provided the court with

numerous articles describing in detail the methods of the Family Bridges program

and similar programs. The materials show that Family Bridges has been operating

for at least 20 years and has documented its success with follow-up studies. Thus,

the court had a reasonable basis to order the parties' participation in Family

Bridges and did not abuse its discretion.

          Darrel argues that Family Bridges "was outside the range of acceptable

choices" because the individuals who run the Family Bridges program are not well-

qualified, the program operates at secret locations, and because neither the case

manager'nor the GAL specifically recommended this program.21 In light of the

evidence Suzette provided to the court demonstrating the efficacy of Family

Bridges, Darrel's argument is not persuasive.

          Family Bridges Expense

          Darrel argues that the trial court lacked the authority to require him to

reimburse Suzette for 50 percent of the cost of the Family Bridges program

because ,it did not make findings that the cost was a reasonable and necessary

extracurricular expense. Suzette argues that the trial court did not abuse its

discretion because this was a proper remedial sanction, not a part of Darrel's child



21   Br. of Appellant at 27, 30.
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No. 75259-6-1/ 16

support obligation.22 We agree with Suzette.

       Here, the trial court ordered Darrel to reimburse Suzette for 50 percent of

the cost of the Family Bridges workshop.           Darrel's share of the cost was

approximately $20,000. Although this is a substantial cost, we conclude that the

order is 6 remedial sanction. This provision was included with other contempt

sanctions; including a $200 per day civil penalty for any days that the children

resided with Darrel and a $100 penalty for each occasion that Darrel did not make

Madeleine available for a scheduled counseling appointment. Nothing in the order

suggests that the trial court imposed the cost as anything but a remedial sanction.

       Accordingly, we conclude that it was not an abuse of discretion for the court

to order Darrel to reimburse Suzette for half of the program's cost.

       Darrel never addresses whether an order that he reimburse Suzette for the

cost of Family Bridges would be a proper remedial sanction. Instead, Darrel's

entire argument against this part of the order assumes that the order is part of his

child support obligation. Before ordering support that exceeds the basic child

support obligation, "the trial court must determine that additional amounts are

reasonable and necessary." In re Marriage of Aiken, 194 Wn. App. 159, 172, 374

P.3d 265 (2016). But Darrel cites no authority holding that this rule applies to a

remedial!sanction for failure to comply with a parenting plan. Accordingly, we

reject Darrel's argument that the trial court lacked the authority to impose this

sanction because it did not make necessary findings.


22Suzette also argues that the trial court could have ordered Darrel to reimburse her for
half of this expense under the child support order because it was an educational expense.
Because we conclude that the order was an appropriate sanction, we do not reach this
issue.
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No. 75259-6-1/ 17

                                  Attorney Fees

       Suzette requests attorney fees under RCW 26.09.160(2)(b)(ii), which

entitles the party who moved for contempt because of noncompliance with a

parenting:plan to "an award of attorney fees on appeal to the extent the fees relate

to the issue of contempt." Rideout, 150 Wn.2d at 358-59 (citing Schroeder, 106

Wn. App' at 353-54).        We award attorney fees to Suzette under RCW

26.09.160(2)(b)(ii) because this appeal relates to Suzette's original motion for

contempt Our award for fees under this statute is without regard to the financial

status or need of the parties.

       We affirm.




WE CONCUR:




                                         17
