                                                                  FILED
                                                                JULY 3, 2014
                                                        In the Office of the Clerk of Court
                                                      W A State Court of Appeals, Division II I




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Marriage of: 	                       )         No. 30965-7-111
                                               )
PETER ALLEN JOHNSON,                           )
                                               )
                      Respondent,              )
                                               )
              and 	                            )         UNPUBLISHED OPINION
                                               )
ROBIN EARLENE JOHNSON,                         )

                                               )

                      Appellant.               )


       SPERLINE, J.* - Robin Johnson challenges a commissioner's ruling that declined

to fmd Peter Johnson in contempt for failing to pay maintenance. The commissioner

determined that Mr. Johnson's payment of Ms. Johnson's liabilities assigned to her in the

separation decree fulfilled his maintenance obligations for the contested period. Ms.

Johnson also assigns error to a superior court's decision to strike her motion to revise

after she failed to comply with a local court rule that required her to notifY the court of

the ready status ofthe motion. We affirm the trial court's decision to strike Ms.



      * Judge Evan E. Sperline is serving as judge pro tempore of the Court of Appeals
pursuant to RCW 2.06.150.
No.30965-7-III
In re Marriage ofJohnson


Johnson's motion to revise. We also affirm the commissioner's ruling denying Ms.

Johnson's motion for contempt. However, we remand for the trial court to address

whether Ms. Johnson is entitled to attorney fees.

                                          FACTS

       Mr. Johnson and Ms. Johnson, each acting pro se, dissolved their 30-year

marriage. The parties filed a petition of legal separation and related findings. Later, the

parties filed a decree of separation and attached the petition and related findings.

However, the agreed-upon provisions in the decree of separation differed from the

findings. In the findings, Mr. Johnson was obligated to pay spousal maintenance for

seven years. However, the decree of separation did not define the length of the

maintenance obligation. The decree of legal separation was ,eventually converted into a

decree of dissolution.

       Mr. Johnson's monthly maintenance obligation was to begin June 1,2003.

Between June 2003 and March 2005, Mr. Johnson did not pay maintenance directly to

Ms. Johnson. However, he paid her separate liabilities, including her one-half of the

mortgage payment, her car payment, and her car insurance. Ms. Johnson did not object.

After the couple's home sold in March 2005, Mr. Johnson stopped paying Ms. Johnson's

liabilities and began paying $1,200 for maintenance directly to her.




                                              2

No.30965-7-III
In re Marriage ofJohnson


       In May 2011, Mr. Johnson informed Ms. Johnson that he was making his last

maintenance payment. Ms. Johnson filed a motion for contempt against Mr. Johnson,

contending that he was obligated to pay maintenance for life as set forth in the dissolution

decree. A court commissioner denied Ms. Johnson's motion, holding that Mr. Johnson's

maintenance obligation was for seven years.

      Ms. Johnson filed a motion for revision. The trial court's ruling on revision

mirrored the commissioner's decision. However, the court noted that it was not deciding

whether the seven years of maintenance had ended or whether Mr. Johnson satisfied his

maintenance obligations in the first few years of separation and dissolution. The court

determined that those issues needed to be presented in a separate motion.

      On January 26,2012, Ms. Johnson filed a second contempt motion, contending

that Mr. Johnson owed unpaid maintenance and other financial obligations. Ms. Johnson

maintained that Mr. Johnson did not make his $1,200 monthly maintenance payments

between June 2003 and March 2005. She also maintained that Mr. Johnson failed to

make $260 monthly payments on a VISA card account as negotiated in the decree, and

that this payment was required indefinitely even though she continued to place charges

on the card after dissolution. With accumulated interest, she sought a judgment of

$58,573.40 and attorney fees in the amount of $4,000.




                                              3

No.30965-7-III
In re Marriage ofJohnson


      A court commissioner denied Ms. Johnson's second motion for contempt on

February 28. The commissioner determined that Mr. Johnson satisfied his maintenance

obligations from June 2003 until the house sold in 2005. The commissioner found that

the parties mutually agreed that benefits Mr. Johnson transferred to Ms. Johnson

constituted in-kind payments, satisfying his maintenance obligation. These benefits

included Mr. Johnson's payment of Ms. Johnson's one-half ofthe mortgage and her

independent use of the family home, totaling a value of$1,000. In addition, Mr. Johnson

paid the utilities on the home, Ms. Johnson's health insurance, and car payment. The

commissioner found that the value of these benefits exceeded the $1,200 maintenance

payment.

      As for the VISA payment, the commissioner found that Mr. Johnson was required

to make payments of $260 per month. However, the commissioner rejected Ms.

Johnson's contention that Mr. Johnson was required to make those payments indefinitely.

Instead, the commissioner determined that Mr. Johnson's obligation was to pay off the

account balance at the time of separation. The commissioner recognized that the parties

neglected to include the account balance in the decree, likely because they were

unrepresented at the time it was created. The commissioner determined that without any

evidence of the balance at the time of separation, he could not make a judgment as to

whether Mr. Johnson met his VISA obligation.

                                            4

No.30965-7-III
In re Marriage ofJohnson


       On March 9, Ms. Johnson filed a motion to revise the commissioner's ruling on

the second contempt motion. A hearing on the revision motion was initially scheduled

for March 29. Spokane County Local Administrative Court Rule (LAR) 0.7(d) required

the motion hearing to be confirmed by noon, two days before the hearing, by notifying

the judicial assistant to the assigned judge.

       The revision hearing was continued to April 12 and then again to April 19. Ms.

Johnson's attorney did not comply with LAR 0.7 for the April 19 hearing. At

approximately 2:00 p.m. on April 17, counsel realized her mistake and contacted the

court to note the hearing as ready. She acknowledged the delay and explained that her

failure to call in was a result of a calendaring error at her office. After being notified that

the trial court struck the motion, she requested an order continuing the revision hearing.

       On April 19, the court heard the motion to continue. The trial court denied the

motion to continue the hearing because the motion had been stricken. The court

explained that striking the motion to revise was mandatory when a party fails to comply

with the call-in procedures in LAR 0.7(d). And, because of the statutory time frame for

filing a revision motion, the motion to revise could not be refiled.

       Ms. Johnson filed a motion for reconsideration. The trial court reaffirmed its

decision, stating (1) the local rule was clear and unambiguous that failure to call the court

to confirm readiness of a motion for revision requires the court to strike the motion, and

                                                5

No.30965-7-III
In re Marriage ofJohnson


(2) Ms. Johnson failed to follow the local rule that requires the moving party to discuss a

requested continuance with the other party before calling in the status of the motion. As

for the compelling reason justifying LAR 0.7, the court explained that it could not

manage the high volume of motions for revision without a confirmation procedure that

gives the court notice to review the file as it existed at the time of the commissioner's

decision.

       Ms. Johnson appeals. She contends that the trial court erred in striking her

revision motion for failure to follow LAR 0.7(d) because the local rule conflicts with the

statutory right to revision. She also contends that the commissioner erred by failing to

find Mr. Johnson in contempt.

                                        ANALYSIS

       LAR 0.7. When the interpretation and application of a court rule is challenged, we

apply de novo review. Spokane County v. Specialty Auto & Truck Painting, Inc., 119

Wn. App. 391, 396, 79 P.3d 448 (2003).

      A trial court's order dismissing an action for lack of compliance with court rules is

reviewed fO,r an abuse of discretion. Woodhead v. Discount Waterbeds, Inc., 78 Wn.

App. 125, 130-31,896 P.2d 66 (1995). "A trial court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds." Id. at 131.




                                             6

No.30965-7-II1
In re Marriage ofJohnson


       Ms. Johnson challenges the trial court's decision to strike her revision motion

pursuant to LAR 0.7(d). She contends that LAR 0.7(d) restricts the statutory right to

revision of a commissioner's ruling in RCW 2.24.050. She maintains that once a motion

to revise is timely filed, the local court rule cannot take away that right by imposing an

additional timing requirement.

       RCW 2.24.050 provides the right to revision ofa commissioner's decision by the

superior court. A motion for revision must be filed within 10 days from the entry of the

order or judgment of the court commissioner. RCW 2.24.050. The right to seek revision

ofa commissioner's decision is rooted in article IV, section 23 of the Washington

Constitution. State v. Smith, 117 Wn.2d 263,268,814 P.2d 652 (1991). The loss of the

right to revise is presumptively prejudicial. State v. Wicker, 105 Wn. App. 428, 432, 20

P.3d 1007 (2001).

       Spokane County enacted LAR 0.7 to govern revision of a court commissioner's

order. In addition to incorporating the lO-day rule in RCW 2:24.050, LAR 0.7 sets the

procedure for hearing a revision motion. LAR 0.7(d) dictates that the moving party

contact the presiding judge's assistant by noon, two days before the hearing date, as to

the ready status of the motion. Failure to comply with this rule results in the motion

being stricken. LAR 0.7(d).




                                             7

No.30965-7-III
In re Marriage ofJohnson


       "Superior courts have the procedural authority to adopt rules to carry out a

statutory directive where a mode of proceeding is not specifically pointed out and

jurisdiction is otherwise conferred upon the court." Mabe v. White, 105 Wn. App. 827,

829, 15 P.3d 681 (2001) (citing RCW 2.28.150). However, when a statute grants a

valuable right to a litigant, the exercise of that right cannot be restricted by a local rule

that imposes a time requirement different from the statute. Harbor Enter., Inc. v. Gunnar

Gudjonsson, 116 Wn.2d 283,293, 803 P.2d 798 (1991).

       Here, the statute and the local court rule are not in conflict. LAR 0.7(d) does not

restrict a litigant's right to revision by adding an additional time requirement to

RCW 2.24.050. Instead, LAR 0.7(d) is a procedural court rule to manage timely motions

for revision. It does not change the court's jurisdiction to hear the matter. A party gains

the right by filing a revision motion within 10 days from the entry of the order or

judgment of the court commissioner. RCW 2.24.050. Filing a timely motion confers

jurisdiction on the superior court to hear the motion. Once jurisdiction is established,

LAR 0.7(d) sets the procedure for hearing the motion. It does not remove jurisdiction or

act as a jurisdictional bar.

       A procedural requirement of the sort incorporated in LAR 0.7(d) is particularly

important to efficient use of public resources in light of the fact that RCW 2.24.050

contains no limitation on when a revision motion must be argued, assuming it is filed

                                               8

No.30965-7-III
In re Marriage ofJohnson


within the lO-day limitation of the statute. The elected judge to whom a revision motion

is presented must duplicate the file review previously undertaken by the commissioner.

Without a confirmation requirement, that investment of time may be wasted. The judge

or a colleague may have to repeat the process yet again if the hearing is continued.

       Here, Ms. Johnson timely filed her motion for revision in accordance with

RCW 2.24.050. At that point, the court obtained jurisdiction to hear her revision motion.

Ms. Johnson's revision hearing was subject to the procedural requirements of

LAR 0.7(d). When Ms. Johnson failed to call in the motion as ready, the trial court

struck the motion as required by the court rule. The trial court explained that it could not

manage the high volume of requests for revision without a call-in procedure that gives the

court notice to review the file materials presented to the commissioner.

       The court did not abuse its discretion by following this mandatory rule. "A trial

court ... has the discretionary authority to manage its own affairs so as to achieve the

orderly and expeditious disposition of cases." Woodhead, 78 Wn. App. at 129. The local

court rule does not affect a party's right to move for revision.

       Ms. Johnson mistakenly relies on In re Marriage ofLemon, 118 Wn.2d 422, 823

P.2d 1100 (1992) in support of her position. In Lemon, the Supreme Court invalidated a

local court rule that imposed a more restrictive time frame for filing an affidavit of

prejudice than required by RCW 4.12.050. Lemon, 118 Wn.2d at 423. The court found

                                              9

No.30965-7-II1
In re Marriage ofJohnson


that the right to a change ofjudge accrues when the applicant meets the statutory criteria,

and that the local court could not restrict that right by imposing a time requirement

different from the statute. Id. at 423-24. The court rule in Lemon is distinguishable from

the rule challenged by Ms. Johnson. LAR 0.7(d) does not change the statutory criteria for

exercising a right to revision in RCW 2.24.050. It is a procedural rule to manage the

court's docket once the right to revision has been invoked.

       LAR 0.7 does not restrict a litigant's constitutional and statutory right to revision.

The court did not abuse its discretion by striking the motion in accordance with LAR 0.7.

Once Ms. Johnson's motion to revise was stricken, the commissioner's decision became

the decision of the superior court. RCW 2.24.050.

       Contempt ofCourt. A superior court's decision in a contempt proceeding is

reviewed for an abuse of discretion. In re Marriage ofMyers, 123 Wn. App. 889, 892,

99 P.3d 398 (2004). A superior court abuses its discretion ifits decision is based on

untenable grounds or untenable reasons. Id. at 892-93. Superior court decisions in

dissolution proceedings will seldom be changed on appeal. In re Marriage ofGriffin,

114 Wn.2d 772, 776, 791 P.2d 519 (1990). The reviewing court must defer to the sound

discretion of the trial court unless the superior court exercised that discretion "in an

untenable or manifestly unreasonable way." In re Marriage ofWayt, 63 Wn. App. 510,

513,820 P.2d 519 (1991).

                                              10 

No. 30965-7-111
In re Marriage ofJohnson


       Findings of fact supported by substantial evidence, Le., evidence sufficient to

persuade a rational person of the truth of the premise, will not be disturbed on appeal. In

re Marriage ofStern, 57 Wn. App. 707, 717, 789 P.2d 807 (1990) (quoting Bering v.

Share, 106 Wn.2d 212,220, 721 P.2d 918 (1986)). "This court will not substitute its own

judgment for that of the trial court where the record shows that the trial court considered

all relevant factors and the award is not unreasonable under the circumstances." Id.

       Here, we review the decision of the commissioner as the decision of the superior

court. RCW 2.24.050. Ms. Johnson assigns error to the trial court's conclusion that Mr.

Johnson satisfied his maintenance payments from October 2003 to March 2005 through

in-kind payments. She contends that the trial court erred in finding that the parties

mutually agreed to the in-kind maintenance payments and that the in-kind payments were

equivalent to the $1,200 monthly maintenance payment owed by Mr. Johnson. Also, Ms.

Johnson maintains that the trial court's decision was an impermissible modification of the

separation decree.

       Contempt proceedings may be initiated as part of a dissolution action when the

party obligated to pay maintenance fails to comply. RCW 26.18.050(1). A court may

issue an order requiring the obligor to appear and show cause as to why the relief

requested under a petition or motion for contempt should not be granted.

RCW 26.18.050(1).

                                             11 

No.30965-7-III
In re Marriage ofJohnson


       In contempt proceedings, reviewing courts apply a strict construction rule to

judicial decrees that are the basis for the contempt motion. Graves v. Duerden, 51 Wn.

App. 642, 647, 754 P.2d 1027 (1988). In such proceedings, an order will not be

expanded beyond the plain meaning of its terms read in light of the issues and purposes

of the order; the facts found must constitute a plain violation of the order. Johnston v.

Beneficial Mgmt. Corp. ofAm., 96 Wn.2d 708, 712-13, 638 P.2d 1201 (1982). The

purpose of this rule is to protect persons from contempt proceedings based on violations

ofjudicial decrees that are unclear or ambiguous, or that fail to explain precisely what

must be done. Graves, 51 Wn. App. at 647-48.

       When contempt proceedings are brought upon claims for past due spousal

maintenance, equitable principles have been applied to mitigate the harshness of

contempt remedies when application of the principle does not cause an injustice to the

former spouse. In re Marriage ofSan born, 55 Wn. App. 124, 127, 777 P.2d 4 (1989).

Equitable estoppel rests on the principle that when a person, by acts or representations,

causes another to change position or to refrain from performing a necessary act to his or

her detriment or prejudice, the person who performs such acts or makes such

representations is precluded from asserting the conduct or forbearance of the other party

to his or her advantage. Hartman v. Smith, 100 Wn.2d 766, 769, 674 P.2d 176 (1984)

(quoting Dickson v. US. Fid & Guar. Co., 77 Wn.2d 785, 788,466 P.2d 515 (1970)).

                                             12 

No.30965-7-II1
In re Marriage ofJohnson


       Equitable estoppel requires a defendant to prove that: "(1) the plaintiff asserted a

statement or acted inconsistently with a claim afterward asserted; (2) the defendant acted

on the faith of that statement or act; and (3) the defendant would be injured if the plaintiff

were allowed to contradict or repudiate the statement or act." In re Marriage of

Capetillo, 85 Wn. App. 311, 320, 932 P.2d 691 (1997). '''Equitable estoppel is not

favored, and the party who asserts it must prove every element with clear, cogent, and

convincing evidence.'" Id. (quoting Sanborn, 55 Wn. App. at 129).

       Here, the plain language of the decree required Mr. Johnson to pay $1,200 per

month beginning in June 2003. Mr. Johnson admits that he djd not make payments

directly to Ms. Johnson between June 2003 and March 2005. However, the

commissioner did not abuse his discretion by denying to hold Mr. Johnson in contempt of

court. The doctrine of equitable estoppel applies.

       While the commissioner did not expressly apply the doctrine, it is clear that his

decision relied on the equitable principle. The commissioner found that the parties

entered into a mutual agreement regarding Mr. Johnson's maintenance payments from

June 2003 to March 2005. Mr. Johnson acted on the mutual agreement and supported

Ms. Johnson by paying her obligations. The commissioner noted that the purpose of

maintenance was for payment of Ms. Johnson's housing, insurance, and car payment.

These were the same obligations that Mr. Johnson paid during the contested period.

                                             13 

No. 30965-7-111
In re Marriage ofJohnson


Also, the commissioner found that Ms. Johnson would receive a double payment if Mr.

Johnson were required to pay back maintenance payments after providing her with

benefits to her in excess of $1,200, and that this result would be absurd. The court found

that Ms. Johnson never complained about Mr. Johnson's performance during this period,

and that the mutual agreement resulted in terms more favorable to Ms. Johnson.

       The commissioner did not abuse his discretion by denying to hold Mr. Johnson in

contempt of court. The commissioner's decision is supported by the evidence. The

declaration of Mr. Johnson stated that after the parties entered the decree of separation,

they agreed that Mr. Johnson would pay the monthly mortgage installments pending the

sale and that this would represent $653 of the $1,200 maintenance payment. He also

stated that he paid all of the utilities associated with the home, Ms. Johnson's medical

insurance, and Ms. Johnson's automobile insurance. These payments continued until the

house was sold in March 2005. At that point, Mr. Johnson contends that he began paying

the $1,200 directly to Ms. Johnson. Ms. Johnson does not dispute that these payments

were made by Mr. Johnson. This evidence supports the commissioner's decision that the

parties agreed that Mr. Johnson would pay Ms. Johnson's obligations, and that this in-

kind payment satisfied his maintenance obligation.

      The evidence also supports the trial court's finding that the value of the in-kind

payments was in excess of the required maintenance payment. It is undisputed Mr.

                                             14 

No.30965-7-III
In re Marriage ofJohnson


Johnson paid $1,008.75 per month to cover Ms. Johnson's house note, car insurance, and

car payment. Also, evidence shows that Mr. Johnson paid approximately $170 for Ms.

Johnson's telephone and utilities and, beginning in Apri12004, approximately $300 for

her medical insurance. At some point before the house sold, he also made an additional

telephone payment in the amount of$I,OOO. While Mr. Johnson was a few dollars short

of the $1,200 monthly payment from June 2003 to March 2005, he more than

compensated for the shortfall when he began paying Ms. Johnson's medical insurance

and by making the extra utility payment. The court found that the parties had a mutual

understanding that the payments were a substitute for direct payment of spousal support

and that Mr. Johnson's maintenance obligation was more than satisfied from June 2003

until March 2005.

         The court did not modify the decree in reaching its decision. The commissioner

did not adjust the amount of past due maintenance. Mr. Johnson made the $1,200

maintenance payment to Ms. Johnson by means of payment of her obligations. The

parties agreed to the payment scheme. Mr. Johnson, in carrying out this agreement, did

not constitute a "plain violation" of the decree upon which a finding of contempt could be

based.

         As for the dispute over the VISA payments, Ms. Johnson contests the

commissioner's conclusion that the decree required Mr. Johnson to pay off the balance of

                                            15 

No.30965-7-IlI
In re Marriage ofJohnson


the VISA. We conclude that the commissioner's decision not to hold Mr. Johnson in

contempt for the VISA payments was proper, albeit for a different reason.

       Contempt was not warranted because the divorce decree is ambiguous in relation

to the VISA obligation. The decree is unclear as to whether the parties share the

responsibility of one VISA account or whether there were two separate accounts and two

separate obligations. Mr. Johnson's separate liabilities include a "VISA" with a $260

payment, while Ms. Johnson's separate liabilities include "Horizon VISA Credit Union"

with a $30 payment. Additionally, the amount owed on the VISA account or accounts is

not listed as a community or separate liability. The underlying debts on the accounts are

not allocated to either party in the decree. Mr. Johnson cannot be held in contempt of this

ambiguous decree, as his obligations under the decree are unclear.

       The commissioner did not need to interpret the decree in the contempt proceeding

to determine the parties' obligations. In the contempt proceeding, the commissioner's

review was limited to the plain language of the divorce decree. Neither party filed a

motion to clarify the decree.

       While contempt of court is a remedy available to enforce court-ordered

obligations, it is not the exclusive remedy. Ms. Johnson could have moved the court for

entry of a judgment based on the allegedly unsatisfied obligations of Mr. Johnson under

the decree. In doing so, she would have the burden of proving, by a preponderance of the

                                            16 

No.30965-7-III
In re Marriage ofJohnson


evidence, the existence and outstanding balance of the obligation. The trial court would

be justified in interpreting the language of the decree in resolving these issues. The party

moving for judgment on the decree would not be burdened with the strict construction

principles applicable to contempt. Concomitantly, Ms. Johnson would not be entitled to

invoke the remedial contempt sanctions provided by statute, including costs and fees

awarded without regard to her need and ability to pay, and incarceration. RCW 7.21.030.

       In sum, the commissioner did not abuse his discretion when he determined that

Mr. Johnson was not in contempt of court. The commissioner's finding that Mr. Johnson

did not commit a plain violation of the maintenance order is supported by the evidence.

The decree is ambiguous in regard to the VISA payments and incapable of enforcement

by contempt.

      Attorney Fees on Appeal. A court's award of attorney fees is reviewed for an

abuse of discretion. Mahler v. Szucs, 135 Wn.2d 398,435,957 P.2d 632 (1998).

      Ms. Johnson challenges the commissioner's denial of her request for attorney fees.

She contends that the commissioner failed to consider the parties' resources and ability to

pay. She also requests attorney fees on appeal under RAP 18.1, RCW 26.18.160, and

RCW 26.09.140.

      RCW 26.18.160 provides for an award of attorney fees and costs to the prevailing

party in a contempt action for enforcement of maintenance. Ms. Johnson is not entitled

                                             17 

No. 30965-7-111
In re Marriage 0/Johnson


to attorney fees under RCW 26.18.160 at the trial court or on appeal. She is not the

prevailing party in her contempt action.

       RCW 26.09.140 allows the court to order one party to a marriage dissolution

action to pay attorney fees and costs to the other party for enforcement or modification

proceedings after entry ofjudgment, based on the financial resources of both parties. The

trial court may award attorney fees in accordance with need and the other side's ability to

pay. RCW 26.09.140. "The trial court must indicate on the record the method it used to

calculate the award." In re Marriage a/Knight, 75 Wn. App. 721, 729,880 P.2d 71

(1994). A lack of findings regarding need of ability to pay requires reversal. In re

Marriage a/Scanlon, 109 Wn. App. 167, 181,34 P.3d 877 (2001). Nothing in the statute

conditions this award on whether a party prevails in an action or not. In re Marriage        0/
Rideout, 150 Wn.2d 337, 357, 77 P.3d 1174 (2003).

       On appeal, RCW 26.09.140 grants the appellate court discretion to award attorney

fees after considering the parties' relative ability to pay and the merit of the issues on

appeal. In re Marriage a/Muhammad, 153 Wn.2d 795,807, 108 P.3d 779 (2005).

       The commissioner abused his discretion when he failed to consider Ms. Johnson's

request for attorney fees under RCW 26.09.140. This attorney fee provision does not

require Ms. Johnson to prevail in the contempt proceeding in order to recover attorney

fees. She sought to enforce the dissolution decree. At a minimum, the trial court was

                                              18 

No.30965-7-II1
In re Marriage ofJohnson


required to consider the financial resources of both parties before denying attorney fees.

There are no findings in the record to indicate that the trial court undertook this review.

We remand the issue of attorney fees to the trial court.

       However, we decline to award Ms. Johnson attorney fees in this appeal. The

merits of Ms. Johnson's contempt arguments are not sound. Additionally, while she

demonstrated financial need, she did not produce documents showing that Mr. Johnson

has the ability to pay.

       We affirm the commissioner's ruling denying Ms. Johnson's motion for contempt.

However, we remand to the trial court to determine if Ms. Johnson is entitled to attorney

fees. Her request for attorney fees incurred on appeal is denied.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040. 



                                           Sperline, J ..T.

WE CONCUR: 





Brown, A.C.J.




                                             19 

