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         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


In the Matter of the Marriage of                 No. 74643-0-1

MICHAELA FELLOWS,                                DIVISION ONE

                      Appellant,

               and
                                                 UNPUBLISHED OPINION
CHARLES FELLOWS,

                      Respondent.
                                                 FILED: November 28, 2016

       Mann, J. — Michaela Osborne1 appeals the trial court's ruling that she was in

contempt of court for violating the dissolution decree relating to her marriage with former

husband Charles Fellows. The trial court found Osborne in contempt after she

intentionally violated the court's order by damaging the couple's former home before

vacating it. Because substantial evidence supports the trial court's finding of contempt

and proper imposition of a remedial, not punitive sanction, we affirm.




       1 Appellant's last name is now Osborne.
No. 74643-0-1/2


                                              FACTS

      This case arises out of dissolution proceedings involving Michaela Osborne and

Charles Fellows. The trial court distributed the parties' assets and granted the decree

of dissolution on June 30, 2015. The decree of dissolution awarded the family home,

located at 10021 SE 192nd Place, Renton, Washington, to Fellows but permitted

Osborne to remain living there for an additional 60 days. Osborne had until August 30,

2015, to remove her belongings from the property and quitclaim her interest in it to

Fellows. The decree ordered Fellows to pay $54,000 to Osborne for her equity interest

in the home.

      At the conclusion of trial, counsel for Fellows asked the court to "issue an oral

ruling to not do something to the house or destroy it."2 The court ruled that

      The house needs to be maintained in the condition it is. I'm—I don't want
      to see—there's no need for the parties to be back here again. This is
       going to be the cleanest way for these parties to just—there's nothing that
       should be holding you together, including this house, so the house needs
       to be in a livable condition.[3]

The court also granted Osborne a permanent protection order against Fellows.

       On July 8, 2015, the trial court presented its written ruling and further

commented:

       The home should be in—if there's any sabotage or anything done to the
       home, I will allow—consider a contempt motion here and will address any
       potential reduction of damages. I think the easiest way to—I think
       [Osborne] is aware that she needs to leave the home intact. Do not
       damage it in any way, shape, or form. If that's a concern, the parties may
       come back for a contempt consideration and address any damages that
       may have occurred.[4]



       2 Report of Proceedings (RP) (June 30, 2015) at 240.
       3 RP (June 30, 2015) at 240.
       4 RP (July 8, 2015) at 251.

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       Osborne vacated the home within the designated time period. On August 31,

2015, Fellows came by the house and saw a hole in the front door and paint splashed

on the exterior and the deck. He called the police and reported the damage. The police

contacted Osborne, who told them that she had possession of the house until

September 8, 2015, and "anything that she does to her house until then is okay."5

According to the police, Osborne "would not admit to actually being the one that

damaged the residence," but claimed that her children did it, and that it was a

"temporary lapse in judgment."6

      The parties do not dispute the extent of the damage done to the house. Paint

was splattered and streaked across the interior and exterior of the house. There were

holes in the walls, doors, cabinets, floors, and ceilings. The baseboards, doorframes,

and windowsills were damaged. There were cracks and chips in the tile, the

countertops, the bathroom sinks, and one of the mirrors. There were numerous

handwritten messages on the walls addressed to "Chuck" and "Chucky."7 There was a

small round hole and writing scratched into the front door. The estimate cost to repair

the damage and replace the fixtures totaled $144,937.49.

       Fellows moved for an order of contempt on October 2, 2015. On October 26,

2015, he filed a declaration of a private investigator he had hired, which contained a

report of a conversation with one of the couple's neighbors. The report included

statements from the neighbor about seeing "a hole in the front door and paint on the

side of the house."8 According to the investigator, Osborne had told her neighbor that


       5 Clerk's Papers (CP) at 577.
       6 CP at 578.
       7 CP at 148, 158, 164-170, 180.
       8 CP at 424.

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No. 74643-0-1/4


she "did it," in reference to the damage to the house, and that she "couldn't wait until

Charles saw the house."9 Osborne filed a declaration on November 3, 2015, which

included police reports of Fellows' prior harassment and violation of the protective order.

She also included declarations from witnesses stating that the house was in livable

condition before Osborne moved out.

       In her declaration, Osborne admitted to removing the refrigerator, the stove, the

dishwasher, and speakers from the walls of the house. She stated that she "only took

what wasn't in the house when we purchased it."10 She also admitted to the "minimal

writing on the walls, and the carving on the front door," but argued that Fellows had

"[seen] the writing before he moved out of the house."11 She declared that when she

left on August 28, 2015, "it was in a livable condition, with no damages to the cabinetry,

no paint on the walls, no holes in the walls, or any of the other damages."12 According

to Osborne, her children and her niece tracked paint inside and made handprints on the

walls when she went to the house with the Renton Police.

       Osborne also stated in her declaration that she believed Fellows damaged the

house himself and blamed her. Fellows submitted a declaration in reply contesting all of

Osborne's assertions and included the police investigation report from the night he

discovered the house had been damaged.

       At the hearing on November 9, 2015, the trial court found Osborne to be in

contempt of court for "intentionally fail[ing] to comply with the oral ruling of Judge




       9 CP at 424.
       10 CP at 431.
       11 CP at 428.
       12 CP at 428.
No. 74643-0-1/5


Galvan and lawful orders of the court dated on 7/8/2015."13 The trial court found that

Osborne violated the order by "willfully and purposefully destroying] the family home."14

The trial court found that Osborne had the past and present ability to comply with the

order but did not have the present willingness to comply with the order. As a result, the

trial court ruled that Osborne was in contempt of court and that she may purge the

contempt by "[p]ay[ing] the monies awarded to Charles Fellows per the Judgment

Summary contained herein."15

                                        ANALYSIS


       We review a trial court's decision in a contempt proceeding for an abuse of

discretion. In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995).

An abuse of discretion is present only if there is a clear showing that the exercise of

discretion was manifestly unreasonable, based on untenable grounds, or based on

untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775

(1971).

       Any "intentional. . . [disobedience of any lawful judgment, decree, order or

process of the court" is a contempt of court as defined by RCW 7.21.010(1 )(b). Where

the superior court basis its contempt finding on a court order, the order "must be strictly

construed in favor of the contemnor" and the facts found "must constitute a plain

violation of the order." Dep't of Ecology v. Tiger Oil Corp.. 166 Wn. App. 720, 768, 271

P.3d 331 (2012). The moving party has the burden of proving contempt by a

preponderance of the evidence. James, 79 Wn. App. at 442.



          13 CP at 502.
          14 CP at 502.
          15 CP at 503.
No. 74643-0-1/6


       Osborne first assigns error to the trial court's findings of fact regarding her failure

to comply with the court's order and "willfully and purposefully destroying] the family

home."16 A trial court's factual findings regarding contempt will be upheld on appeal if

they are supported by substantial evidence.17 In re Marriage of Rideout, 150 Wn.2d

337, 350, 77 P.3d 1174 (2003). Substantial evidence exists if a rational, fair-minded

person would be convinced of the truth of the declared premise. Hegwine v. Longview

Fibre Co., Inc., 162 Wn.2d 340, 353, 172 P.3d 688 (2007). Even if there are several

reasonable interpretations of the evidence, it is substantial if it reasonably supports the

finding. Fred Hutchinson Cancer Research Ctr. v Holman, 107 Wn.2d 693, 713, 732

P.2d 974 (1987).

       The trial court found that Osborne "intentionally failed to comply with the oral

ruling of Judge Galvan and lawful orders of the court dated on 7/8/2015," by "willfully

and purposefully destroying] the family home."18 Osborne admitted to writing on the

walls and carving into the front door. She also stated in her declaration that the children

made the handprints and tracked paint into the house. The police report included

Osborne's statements that "she technically didn't do the damage to the house," but the

children did, and that "she could do whatever she wanted to her house."19 Based on her




        16 Br. of Appellant at 5-6; CP at 502.
        17 In her reply brief, Osborne argues for a de novo review of the record because the trial court's
decision was based entirely on the parties' declarations and written submissions. If the parties do not
dispute the underlying facts but only the conclusions drawn from the facts, de novo review is appropriate
where the trial court relied solely on documentary evidence and there were no questions of credibility. In
re Marriage of Lanaham and Kolde. 153 Wn.2d 553, 559, 106 P.3d 212 (2005). For a contempt
proceeding such as this one, however, where credibility is an issue, the substantial evidence standard
applies. In re Marriage of Rideout. 150 Wn.2d 337, 350-52, 77 P.3d 1174 (2003).
        18 CP at 502.
        19 CP at 578.
No. 74643-0-1/7



own admissions and the evidence in the record,20 a rational, fair-minded person could

find that Osborne violated the court's order by willfully and purposefully damaging the

family home.

        Next, Osborne argues that the trial court based the contempt findings on

inadmissible hearsay evidence, namely the police report and the report of a private

investigator's interview with a neighbor. Fellows argues that Osborne failed to object to

the inclusions of these statements at trial, and therefore has not preserved the error for

appeal. We agree.

        It is well settled that objections to evidence cannot be raised for the first time on

appeal. Sepich v. Dep't of Labor and Indus., 75 Wn.2d 312, 319, 450 P.2d 940 (1969),

citing Omeitt v. Dep't of Labor and Indus., 21 Wn.2d 684, 152 P.2d 973 (1944).21 We

decline to exercise our discretion to consider Osborne's challenge to the admissibility of

the reports under these circumstances. Her counsel at the contempt hearing spoke to

the authenticity of the police report but did not contest the statements contained in it as

hearsay. She was also aware of and had the opportunity to address the submission of

the investigator's report, but chose not to speak to it. Osborne waived any objection to



         20 Osborne argues that Fellows only presented "unsubstantiated circumstantial evidence" that she
did the damage to the house. Br. of Appellant at 15. This is of no consequence. Circumstantial evidence
is just as good as direct evidence. Rogers Potato Service, LLC v. Countrywide Potato. LLC, 152 Wn.2d
387, 391, 97 P.3d 745 (2004).
          21 Osborne argues that the appellate court may review arguments brought up for the first time on
appeal where the issue involves sufficiency of the evidence. RAP 2.5(a)(2) provides that an appellant
may raise for the first time on appeal "the failure to establish facts upon which relief can be granted." This
exception applies only where the proof of particular facts at trial is required to sustain a claim. Mukilteo
Ret. Apts.. LLC v. Mukilteo Investors. LP. 176 Wn. App. 244, 246, 310 P.3d 814 (2013). Division Three
recently examined the rule and held that it"should be read, as it was intended to be read, as applying
solely to insufficient proof of an essential element of a party's case. That description does not apply to
the trial court's actions." State v. Clark. No. 32839-2-III, slip op. at 10 (Wash. Ct. App. Sept. 8, 2016),
http://www.courts.wa.gov/opinions/pdf/328392_pub.pdf. While Osborne does argue that Fellows has
failed to provide sufficient evidence to support a finding of contempt, her belated objection to the reports
as hearsay would not fall within RAP 2.5(a)(2).
No. 74643-0-1/8


the reports as hearsay at the hearing and cannot raise the issue for the first time on

appeal. RAP 2.5(a).

       Finally, Osborne argues that the contempt charge was punitive and entered in

violation of her constitutional rights. According to Osborne, the trial court intended to

punish her for her past acts without the due process safeguards required by one facing

criminal charges. Fellows argues that the contempt was remedial, not punitive, and was

only imposed to compensate for the damage done to the house.

       Under RCW 7.21.030(1), a trial court can impose "remedial" sanctions on a

person for contempt of court after notice and hearing. However, under RCW

7.21.040(1)-(2) a trial court may impose "punitive" sanctions only after a complaint or

information is filed based on probable cause. In addition, the trial court must provide

those due process rights afforded to criminal defendants before imposing a punitive

sanction. In re Pers. Restraint of King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988).

       A "punitive sanction" is "a sanction imposed to punish a past contempt of court

for the purpose of upholding the authority of the court." RCW 7.21.010(2). A "remedial

sanction" is one that 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 perform." RCW 7.21.010(3). Asanction will be considered remedial rather
than punitive if the contemnor is able to purge the contempt through an affirmative
act. In re Dependency of A.K., 162 Wn.2d 632, 646, 174 P.3d 11 (2007).

       Osborne declines to mention that the trial court provided her with a method of

purging the contempt when she argues that her sanction was punitive. Here, the trial
court expressly ruled that Osborne may purge the contempt by paying the monies


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No. 74643-0-1/9


awarded to Fellows in accordance with the judgment. Furthermore, RCW

7.21.030(3) allows the court to order a contemnor to pay losses suffered as a result of

the contempt and costs incurred in the contempt proceedings for any

"person found in contempt of court." See State ex rel. Chard v. Androw, 171 Wash.

178, 17 P.2d 874 (1933). The contempt is remedial and Osborne was not entitled to

further due process rights.

       Both parties ask for fees on appeal under RAP 18.1. The rule entitles a party to

reasonable fees and costs if an applicable law grants that right. RAP 18.1(a). Under

RCW 7.21.030(3), a court may order a person found in contempt of court to pay a party

for any costs incurred in connection with the contempt proceeding, including reasonable

attorney fees. This includes fees incurred by a party defending the appeal of a

contempt order. R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496

(1995). We award Fellows his fees and costs on appeal subject to his compliance with

RAP 18.1(d).

       Affirmed.




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WE CONCUR:




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