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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                               rn 0
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                                                                                       .73            •

In the Matter of the Marriage of:         )                                             c,,
                                          )      No. 76330-0-1                                      or"C
ARADHNA FORREST (f/k/a Luthra),           )
                                          )      DIVISION ONE                                •e'
                       Respondent,        )                                                   oco
                                          )
                and                       )
                                          )
VIKAS LUTHRA,                             )      UNPUBLISHED OPINION
                                          )
                       Appellant.         )      FILED: April 23, 2018
                                          )

          BECKER, J. —Vikas Luthra appeals from a contempt order imposing jail

time for his noncompliance with provisions of a parenting plan. Ample evidence

supports the finding of contempt. Incarceration was an appropriate sanction. We

affirm.

          Luthra's marriage to the respondent, Aradhna Forrest, was dissolved in

2010 after a five-day trial. The court entered detailed findings of fact. The court

determined that Luthra had obsessive-compulsive disorder(OCD)and that his

OCD manifestations were most severely pronounced at home. Luthra's failure to

adequately treat his OCD was adversely impacting the parties' son, then six

years old. The parenting plan included provisions requiring Luthra to engage in

Intensive, home-based therapy for his OCD" with a therapist "highly experienced
No. 76330-0-1/2

In intensive OCD treatment." The court concluded that requiring this treatment

served the child's best interests. If Luthra could more effectively manage his

OCD,the child could "continue to have the regular presence of his father in his

life in a way that is healthy for him." An order to enforce the parenting plan,

entered on June 6, 2011, required Luthra to begin treatment within three months.

       Luthra did not engage in the required therapy, prompting Forrest to bring

contempt proceedings against him in July 2015. See RCW 26.18.050;

RCW 26.09.160(1)-(2)(authorizing contempt proceedings against parent who

refuses to comply with parenting plan). The trial court ordered Luthra to develop

a plan to engage in intensive home-based OCD treatment. During a series of

subsequent review hearings, Luthra failed to convince the court that he was

receiving appropriate treatment. Between October 2015 and June 2016, the

court entered four contempt orders against him. The orders imposed

Increasingly coercive sanctions, including assignment to work crew. The trial

judge warned Luthra on numerous occasions that continued noncompliance

would result in incarceration.1 We affirmed the contempt orders in an

unpublished opinion.2

       The present appeal arises from a review hearing on December 6, 2016.

During the hearing, Luthra, representing himself, told the judge that he was




       1 See,u, Report of Proceedings(Aug. 19, 2015)at 27; Report of
Proceedings(Oct. 20, 2015) at 41; Report of Proceedings (Jan. 13, 2016)at 30-
31; Report of Proceedings(Mar. 16, 2016) at 9; Report of Proceedings(May 17,
2016) at 22.
      2 In re Marriage of Forrest, No. 74034-2-1, slip op. at 13(Wash. Ct. App.
Feb. 6, 2017)(unpublished), http://www.courts.wa.gov/opinionsindf/740342.pdf.
                                          2
No. 76330-0-1/3

participating in home-based therapy. He did not substantiate this claim. He

presented evidence that he had recently begun attending sessions with a

psychologist but provided minimal detail as to the nature of the treatment. He

told the court that the psychologist was "doing what is necessary for the

purposes of treating my OCD." The court found that Luthra had "partially

complied" with prior orders but that he remained in contempt. Luthra was

ordered to serve 10 days in the King County Correctional Facility. The court

suspended this sanction pending a review hearing in January 2017. The court

instructed Luthra that in advance of the next hearing, he should submit specific

information, outlined in the contempt order, concerning his current treatment

plan.

        Luthra filed a notice of appeal in this court on January 11,2017, seeking

review of the December 2016 contempt order. Meanwhile, Luthra submitted to

the trial court a declaration from his psychologist in which the psychologist

expressed her opinion that Luthra did not require intensive home-based

treatment and she would therefore not provide it to him. After a hearing on

January 18, 2017, the court entered an order finding that Luthra had made "some

forward progress" by attending office sessions with the psychologist. But he had

not shown that the psychologist had expertise in OCD or that she was providing

the type of therapy required by the parenting plan. Thus, Luthra remained in

contempt. The court imposed a sanction of 2 days' incarceration, reduced from

the 10 days previously imposed.




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No. 76330-0-1/4

       Luthra filed an amended notice of appeal in this court, challenging the

sanction imposed on January 18 in addition to the December 2016 contempt

order. He claims that the contempt finding is not supported by the evidence and

the jail sanction exceeds the trial court's authority. We review challenges to a

contempt order for an abuse of discretion. In re Pers. Restraint of King, 110

Wn.2d 793, 798,756 P.2d 1303(1988). A trial court abuses its discretion by

exercising it on untenable grounds or for untenable reasons. In re Marriage of

James, 79 Wn. App. 436,440,903 P.2d 470(1995).

       A contempt finding is warranted only if a party acted in bad faith or

committed Intentional misconduct. RCW 7.21.010(1)(b); James,79 Wn. App. at

441. Luthra contends that his failure to comply with the parenting plan was not

contumacious because he exercised "good faith due diligence" in attempting to

find a qualified provider.

       The record adequately supports that Luthra's noncompliance was

Intentional. At various points below, the trial court entertained evidence and

argument concerning the availability and necessity of the treatment ordered in

the parenting plan, including arguments by Luthra that he could not find a

qualified provider. But Luthra provided little evidence to substantiate his alleged

efforts to comply. During the most recent hearings, in December 2016 and

January 2017, Luthra demonstrated that he was participating in non-home-based

therapy with a psychologist whose expertise in OCD was not established. He did

not show additional steps to comply with the parenting plan. He did not show

that the treatment ordered by the court was unavailable. In the absence of such


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No. 76330-0-1/5

evidence, the trial court could reasonably determine that Luthra remained in

contempt.

      Luthra contends that the trial court exceeded its authority by imposing jail

time as a sanction. We disagree.

      The contempt statute authorizes both remedial and punitive sanctions.

RCW 7.21.050(1). "A remedial sanction is imposed for the purpose of coercing

performance when the contempt consists of failure to perform an act that is yet in

the person's power to perform." In re Interest of M.B., 101 Wn. App. 425,438,3

P.3d 780(2000), review denied 142 Wn.2d 1027(2001). Unlike punitive

sanctions, remedial sanctions are civil and therefore do not require criminal due

process protections. M.B., 101 Wn. App. at 438. "A contempt sanction involving

Imprisonment remains coercive, and therefore civil, if the contemnor Is able to

purge the contempt and obtain his release by committing an affirmative act."

M.B., 101 Wn. App. at 439.

       Luthra argues that the sanction is punitive because it requires

incarceration for a determinate number of days. The fact that a sanction imposes

a determinate sentence does not make it punitive. M.B., 101 Wn. App. at 439.

What is dispositive is whether the sanction is intended to punish or coerce. The

record establishes that the trial court ordered Luthra's incarceration to motivate

him to comply with the parenting plan after other sanctions failed to produce this

result. Luthra retained the power to purge the contempt and avoid future

contempt sanctions by committing an affirmative act—demonstrating his efforts

to comply with the parenting plan. The trial judge provided specific instructions


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No. 76330-0-1/6

as to how Luthra could show compliance in both the December 2016 and

January 2017 contempt orders. We conclude the sanction was remedial, not

punitive.

       Luthra contends that the trial court improperly modified the parenting plan

by ordering him to perform work crew days. This is so, he asserts, because the

parenting plan does not mention work crew as a possible consequence for

violations. This issue is not properly before us. The contempt orders requiring

Luthra to participate in work crew are not challenged in this appeal. In any event,

Luthra fails to demonstrate that a court modifies a parenting plan by imposing a

contempt sanction.

       Luthra contends the trial judge was biased. The record does not support

this claim. Luthra points out that during the January 2017 review hearing, the

court denied a request by Luthra to continue the case until a public defender

could be appointed to represent him. The judge interpreted the request as

dilatory. This conclusion was reasonable under the circumstances.

       Luthra challenges the portion of the contempt order awarding attorney

fees to Forrest. We will not disturb the award absent an abuse of discretion. In

re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954(1996). An award

of fees to the aggrieved parent in a contempt proceeding is authorized by

ROW 7.21.030(3) and ROW 26.09.160(1). The award here was supported by the

declaration of Forrest's counsel. Luthra offers no persuasive basis for finding

that the amount awarded was excessive or otherwise unreasonable. We decline

to vacate the award.


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No. 76330-0-1/7

       Luthra raises additional issues for the first time in his reply brief. An issue

raised and argued for the first time in a reply brief does not warrant consideration.

Cowiche Canyon Conservancy v. Bosley 118 Wn.2d 801, 809,828 P.2d 549

(1992).

       To summarize, Luthra has identified no basis for overturning the trial court

orders. We are satisfied that the trial court adhered to applicable requirements in

crafting the orders and gave careful consideration to the circumstances of this

case. The judge exercised patience and flexibility in seeking proof from Luthra

that he is committed to satisfying his obligations under the parenting plan.

Imposing jail time was reasonable to motivate Luthra to obtain effective treatment

for his own sake and for that of his child.

       Forrest requests attorney fees on appeal based on the filing of a frivolous

appeal or intransigence in this court. We decline to award fees on these

grounds.

       In two prior appeals between Luthra and Forrest, we ordered Luthra to pay

attorney fees incurred by Forrest on appea1.3 Forrest alleges Luthra has not

complied with these orders. If Luthra files further appeals in this matter without

having paid Forrest's attorney fees as previously ordered by this court, Forrest

may file a motion to require full payment as a condition of appellate review. RAP

18.9(a).




       3 Inre Marriage of Forrest, No. 71018-4-1, slip op. at 11-12(Wash. Ct. App.
Nov. 17, 2014)(unpublished), htto://www.courts.wa.gov/opinions/pdf/710184.0f;
In re Marriage of Forrest, No. 74034-2-1, slip op. at 13.
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No. 76330-0-1/8

      Affirmed.




WE CONCUR:



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