                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 2, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 In the Matter of the Marriage of:                                 No. 50959-8-II

 TOMI L. WINTERS, f/k/a INGERSOLL,

                                Respondent,

        v.

 JOHN P. INGERSOLL,                                            UNPUBLISHED OPINION

                                Appellant.

       LEE, A.C.J. — In 2015, the superior court entered a final parenting plan regarding John P.

Ingersoll’s and Tomi L. Winters’s (f/k/a Ingersoll) children. Beginning in the summer of 2017,

the superior court heard several motions for contempt regarding the provisions of the parenting

plan. And, in 2018, due to a child welfare proceeding initiated in Alaska, the superior court

relinquished its jurisdiction to the Alaska superior court. Ingersoll appeals some of the superior

court’s contempt hearing orders and the superior court’s order relinquishing jurisdiction to the

Alaska superior court. We affirm the superior court’s contempt hearing orders, but reverse the

superior court’s order relinquishing jurisdiction to Alaska.

                                              FACTS

       On June 15, 2015, the superior court entered a final parenting plan for Ingersoll’s and

Winters’s children, KAI and FMI. By the time the final parenting plan was entered, Winters and
No. 50959-8-II


the children had moved to Alaska. See In re the Marriage of Ingersoll v. Ingersoll, noted at 200

Wn. App. 1070 (Oct. 17, 2017), review denied, 190 Wn.2d 1010 (2018). Ingersoll had residential

time with the children during certain school breaks and for six weeks during the school summer

break. The parenting plan provided for weekly, half-hour video visits with the children for

Ingersoll during the school year. And the parenting plan provided for Ingersoll to visit with the

children in Alaska for no more than 7 days in any 90 period during the school year.

         The events giving rise to the current appeal began on May 19, 2017, when Ingersoll filed

a motion for contempt against Winters. Ingersoll asserted that Winters failed to comply with the

residential provisions of the parenting plan because Winters did not send KAI to Washington for

Ingersoll’s summer residential time. Although Winters successfully sent FMI to Washington for

Ingersoll’s summer residential time, Winters claimed she made several attempts to get KAI to the

airport, but KAI refused to leave. Despite Winters imposing consequences on KAI’s refusal to

travel to Washington, KAI still refused to leave Alaska for residential time with Ingersoll. On

June 19, a superior court commissioner found that Winters did not act in bad faith and did not hold

Winters in contempt.1 .

         On June 28, the day before FMI was scheduled to return to Alaska, Ingersoll filed a motion

for a temporary restraining order to protect FMI from Winters. The motion alleged that the

restraining order was necessary because Winters allowed KAI to download sexually explicit

animated reading materials. The motion also alleged that KAI had been physically abusing FMI,

and Winters was unable to protect FMI or control KAI’s behavior. Ingersoll stated that he had




1
    Ingersoll has not assigned error to this contempt order.


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No. 50959-8-II


reported these allegations to the Alaska Office of Children’s Services (OCS). OCS initiated an

investigation into the allegations. A superior court commissioner denied the motion for a

temporary restraining order because the commissioner did not believe he had authority to enter an

order modifying a parenting plan when there was no pending action to modify the parenting plan.

And the commissioner noted that if there was an actual emergency or imminent harm, Child

Protective Services or law enforcement had the ability to take immediate action, which they had

not done.

       On July 5, Winters filed a motion for contempt against Ingersoll based on Ingersoll’s failure

to return FMI to Alaska.

       On July 12, Ingersoll filed a second motion for a restraining order requesting the same

relief and based on the same grounds as the June 28 motion for a restraining order. At the August

7 hearing on the motion for a restraining order, Ingersoll clarified that he was asking for the

parenting plan to be suspended, but did not intend to seek changes to the final parenting plan. The

superior court commissioner denied Ingersoll’s motion for a temporary restraining order. The

commissioner stated that she had reviewed all of Ingersoll’s materials and determined that

Ingersoll’s motion was based on facts “that the Court has previously had an opportunity to review.”

Verbatim Report of Proceedings (VRP) (August 7, 2017) at 7.

       On August 8, the same superior court commissioner who heard Ingersoll’s August 7 motion

for a temporary restraining order found Ingersoll in contempt for failing to return FMI to Alaska.

The commissioner found,

       I don’t know that there’s any way that Mr. Ingersoll can support the claim that he
       is acting in good faith. He has been before this Court a number of times and this
       Court continues to repeat to him what it is that he needs to do, whether it’s a denial



                                                 3
No. 50959-8-II


         of the relief that’s (sic) he’s requesting, or it’s in our hearing from yesterday, and
         yet still we find ourselves here today with him not having returned the child.

                 This is my finding for the contempt. He had the ability to follow the Court’s
         order. His failure to follow the Court’s order and return the child was intentional.
         He acted in bad faith. He has the ability to follow the Court’s Order now. He must
         follow the Court’s Order now. He must, and my ruling is, that . . . [t]he child needs
         to be at the airport on that flight and returned today.

VRP (August 8, 2017) at 32-33.

         Ingersoll filed motions to revise the commissioner’s orders denying his motions for a

temporary restraining order and finding Ingersoll in contempt. The superior court denied both of

Ingersoll’s motions to revise.      During the hearing, Ingersoll argued to the court that the

commissioner improperly found that he acted in bad faith because the merits of his concerns were

never addressed by the court and he was making a good faith effort to protect FMI. The superior

court judge stated, “I think it was in bad faith, given the history of the case. ” VRP (Sept. 1, 2017)

at 18.

         On August 29, Ingersoll filed another motion for contempt alleging that Winters failed to

provide video visits as required by the parenting plan on August 13, 20, 25, and 27. Winters

responded by filing a declaration explaining the circumstances regarding the missed video visits.

First, Winters explained that no video visit was required on August 13 because the parenting plan

required video visits during the school year and the school year had not started yet. For the calls

on August 20 and 27, Winters asserted that, despite encouragement and consequences, the children

refused to engage in video visits with Ingersoll. And the August 25 video visit (the scheduled

make-up for the August 20 video visit) failed due to problems with the internet connection. The

August 27 video visit was successfully made up on September 1.




                                                   4
No. 50959-8-II


       Winters also declared that she had concerns regarding Ingersoll’s upcoming in-person visit

scheduled for September 28 because of the ongoing Alaska OCS investigation Ingersoll initiated

in June based on the allegations of access to sexually explicit material and KAI’s physical abuse

toward FMI. Winters explained that, on September 25, OCS had sent her communications

indicating significant concerns about the children having contact with Ingersoll. And OCS

demanded information regarding how Winters intended to keep the children safe during any

contact with Ingersoll. Winters stated that, based on this communication with OCS, she was

attempting to obtain more information about OCS’s concerns and expectations.

       Ingersoll struck the motion for contempt, originally noted for September 29, and renoted

the motion for November 17. Before the November 17 motion hearing, Winters filed another

declaration with additional information regarding the OCS investigation. Winters stated that on

October 13, OCS filed a petition in the Alaska courts alleging that KAI and FMI were “Children

in Need of Aid (CINA),” which is the substantial equivalent of Washington dependency

proceedings. Clerk’s Papers (CP) at 661. Winters also stated that two domestic violence

protection orders were entered by the Alaska courts. On September 28, 2017, the Alaska courts

extended an already existing domestic violence protection order, which did not include the

children.   On October 13, the Alaska courts entered a domestic violence protection order

prohibiting contact between Ingersoll and the children. On November 17, the superior court found

that Winters complied with the parenting plan with regard to the four missed visits in August.

       On November 30, Ingersoll filed another motion for contempt based on Winters’s refusal

to (1) allow the in-person visit scheduled for September 28, and (2) provide any video visits after




                                                5
No. 50959-8-II


September 29. Winters filed another declaration stating that she refused to allow the in-person

visit and stopped the video visits as a result of the OCS investigation and pending CINA petition.

       On December 19, the superior court found that Winters failed to comply with the parenting

plan. However, the superior court found that Winters’s failure to comply was not in bad faith

because of the OCS investigation and CINA petition.        Therefore, the superior court did not find

Winters in contempt. And the superior court found that Winters was entitled to attorney’s fees

because Ingersoll’s motion was brought without a reasonable basis.

       On May 9, 2018, the superior court’s judicial assistant emailed the parties and informed

them that the Alaska superior court judge had requested a hearing under the Uniform Child

Custody Jurisdiction and Enforcement Act (UCCJEA) because Ingersoll had filed a motion to

dismiss the Alaska CINA proceedings or, alternatively, communicate with the Washington courts

regarding jurisdiction. The email to the parties stated,

       I received a call today from Judge Kauvar in Alaska. She was requesting a
       UCCJEA hearing on this matter as Mr. Ingersoll’s attorney has filed a jurisdictional
       motion in Alaska.

       A UCCJEA hearing has been set for Thursday May 17th at 9:30 a.m. in courtroom
       822. Parties will not have a speaking role but may attend the hearing as well as
       provide pleadings.

CP at 798. Winters did not file anything prior to the UCCJEA hearing.

       After receiving the superior court’s emailed message, Ingersoll emailed the court

requesting clarification regarding the hearing, expressing his belief that any issue in the case was

related to jurisdiction. The court did not provide any additional clarification regarding the hearing.

Ingersoll also requested that any Alaska court documents provided to the superior court be filed

for consideration.



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No. 50959-8-II


       The record shows that the superior court had a copy of Ingersoll’s motion to dismiss filed

in the Alaska superior court. Ingersoll’s motion alleged that Washington had exclusive, continuing

jurisdiction over any child custody proceeding involving KAI and FMI, and argued that the Alaska

court must dismiss its proceedings and leave the case to Washington. The superior court also had

a copy of Winter’s response asserting that Alaska properly exercised temporary emergency

jurisdiction over the children.

       The record also shows that the superior court had documents filed by the Alaska attorney

general, wherein it argued that the Alaska superior court properly exercised temporary emergency

jurisdiction. The Alaska attorney general also noted that, while temporary emergency jurisdiction

was appropriate, the UCCJEA required the Alaska court to communicate with the Washington

court regarding resolutions of the emergency, the safety of the children, and the duration of any

temporary orders.2




2
   The temporary emergency jurisdiction provision of the UCCJEA codified in Washington
provides,

       A court of this state that has been asked to make a child custody determination
       under this section, upon being informed that a child custody proceeding has been
       commenced in, or a child custody determination has been made by, a court of a
       state having jurisdiction under RCW 26.27.201 through 26.27.221, shall
       immediately communicate with the other court. A court of this state that is
       exercising jurisdiction pursuant to RCW 26.27.201 through 26.27.221, upon being
       informed that a child custody proceeding has been commenced in, or a child
       custody determination has been made by, a court of another state under a statute
       similar to this section shall immediately communicate with the court of that state to
       resolve the emergency, protect the safety of the parties and the child, and determine
       a period for the duration of the temporary order.

RCW 26.27.231(4).        Alaska’s statute contains the same procedural requirements.           AS
25.30.330(d).


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No. 50959-8-II


        The record further shows a response to Ingersoll’s motion to dismiss filed by the children’s

guardian ad litem (GAL) in Alaska asserting that Alaska properly asserted temporary emergency

jurisdiction.3 Finally, in his response, Ingersoll maintained his request to have the Alaska court

dismiss the case and he noted that if the Alaska court exercised temporary emergency jurisdiction

it must communicate with the Washington court as required by the temporary emergency

jurisdiction statute.

        On May 17, 2018, the Washington superior court held a UCCJEA hearing to confer with

Judge Kauvar of the Alaska Superior court. The Washington superior court recognized that it had

jurisdiction over child custody proceedings because it entered the final parenting plan; however, it

asked for the Alaska superior court’s opinion on whether Washington had become an inconvenient

forum. Judge Kauvar explained her position:




3
    In the facts section of the Alaska GAL’s brief, the Alaska GAL explains the state of the
Washington contempt proceedings as part of explaining the current state of the Washington case
to the Alaska courts and states,

        Once this appeal [of the Washington contempt order] is concluded, and if no further
        appeal is taken and/or possible, Ms. Winters may then take steps to either (1)
        modify the existing Washington custody orders and parenting plan to fully protect
        the children, or (2) seek to move the custody proceedings to Alaska using the
        inconvenient forum provisions of the UCCJEA.

CP at 802. This is the only mention of the inconvenient forum provision of the UCCJEA in the
Alaska pleadings. Winters implies that the GAL raised the issue of inconvenient forum and urged
the Alaska court to confer with the Washington court regarding the issue. But this statement is
misleading. The GAL clearly referenced the inconvenient forum provision as something that could
be used by Winters in the future. The GAL was not encouraging the Alaska court to ask the
Washington court to relinquish jurisdiction under the inconvenient forum provision. And the
GAL’s reference to a conference between the Washington and Alaska courts referred to the
conference required by the temporary emergency jurisdiction provision of the UCCJEA, not the
inconvenient forum provision.


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No. 50959-8-II


       Well, the children have been living in Alaska since 2014. And the jurisdiction
       Alaska took, most recently, was in the Child in Need of Aid case, and they took it
       on the basis of an emergency. And that case is still proceeding. So the — Alaska
       believes at this time that if Washington, even though it had initial jurisdiction,
       would allow Alaska to have jurisdiction, Alaska is the place where the children and
       the mother reside and they have been residing. They have seen counselors in
       Alaska and are going to school in Alaska. So the information right now, I believe,
       regarding the children is basically in Alaska. They have been appointed guardian[s]
       ad litem[] in Alaska, and the mother has an attorney in Alaska.

VRP (May 17, 2018) at 4-5. The Washington superior court agreed with Judge Kauvar’s

statement, recognized that the only proceedings that had been pending in Washington courts were

contempt hearings, and agreed that it would be appropriate to give up jurisdiction to Alaska. After

the court had made its decision, Ingersoll asked to make an objection for the record. The court

refused and stated that there would not be a record made by anyone else.

       Following the UCCJEA conference between the Washington and Alaska judges, the

Washington court entered findings of fact and conclusions of law relinquishing jurisdiction to

Alaska.

       Ingersoll appeals.

                                            ANALYSIS

       Ingersoll appeals the superior court’s contempt hearing orders and the superior court’s

order relinquishing jurisdiction to the Alaska superior court. We affirm the superior court’s

contempt hearing orders, but reverse the superior court’s order relinquishing jurisdiction to Alaska.

A.     CONTEMPT ORDERS

       Ingersoll argues that the superior court abused its discretion by finding Ingersoll in

contempt for failing to return FMI to Alaska at the end of summer visitation. Ingersoll also argues




                                                 9
No. 50959-8-II


that the superior court abused its discretion by finding that Winters was not in contempt by failing

to provide visitation. We affirm the superior court’s contempt hearing orders.

       We review a superior court’s decision in a contempt hearing for an abuse of discretion. In

re Marriage of Eklund, 143 Wn. App. 207, 212, 177 P.3d 189 (2008). A superior court abuses its

discretion by basing a decision on untenable grounds or untenable reasons. Id. “A parent seeking

a contempt order to compel another parent to comply with a parenting plan must establish the

contemnor’s bad faith by a preponderance of the evidence.” Id. at 215. We do not review the trial

court’s credibility determinations on appeal. Id. at 212.

       1.      Ingersoll’s Refusal to Return FMI to Washington4

       Ingersoll argues that the superior court abused its discretion by finding Ingersoll in

contempt on August 8 for failing to return FMI to Alaska at the end of his summer residential time.

We disagree.

       Ingersoll contends that because there was an ongoing Alaska OCS investigation into his

allegations regarding the potential abuse of FMI, it was an abuse of discretion for the superior

court to fail to consider the factual basis for his abuse allegations in determining he had acted in

bad faith for failing to return FMI to Alaska. But the trial court had no obligation to decide the

merits of Ingersoll’s allegations of abuse to the Alaska OCS. At the time of the contempt hearing,

no determination had been made regarding Ingersoll’s allegations. Therefore, the superior court’s



4
  Ingersoll also appears to argue that the superior court commissioner erred by denying his request
for temporary restraining orders. Because FMI has been returned to Alaska, the orders on the
motions for temporary restraining orders are moot. Westerman v. Cary, 125 Wn.2d 277, 286, 892
P.2d 1067 (1994) (A case is moot when the court can no longer provide effective relief.).
Therefore, we do not consider the merits of Ingersoll’s argument regarding the commissioner’s
orders on Ingersoll’s motions for temporary restraining orders.


                                                10
No. 50959-8-II


contempt determination was essentially a credibility determination regarding whether Ingersoll

acted in bad faith by refusing to return FMI to Alaska while OCS investigated the merits of his

allegations. We will not disturb credibility determinations on appeal.

       Here, Ingersoll did not return FMI as required by the parenting plan. There was no court

order (by either Washington or Alaska) that justified refusing to obey the parenting plan. And

Ingersoll did not take any action to actually modify the parenting plan. Therefore, the critical

factor in the contempt proceeding was the superior court’s credibility determination regarding

Ingersoll’s concerns underlying the allegations. The superior court apparently did not find

Ingersoll credible, and we do not review that determination. Accordingly, we affirm the August 8

contempt hearing order.

       Ingersoll also alleges that there was no basis for a bad faith finding because the superior

court had not ruled on the merits of his motions for a restraining order. We disagree.

       Whether the superior court had ruled on the merits or not, Ingersoll’s request to keep FMI

in Washington past the term authorized by the parenting plan was denied. And Ingersoll’s

concerns were being addressed by an ongoing Alaska OCS investigation into Ingersoll’s

allegations. Essentially, Ingersoll’s argument is that, because he did not agree with superior court’s

resolution of his concerns, he was justified in refusing to comply with the parenting plan until his

concerns were addressed to his satisfaction. But the fact that Ingersoll did not like the superior

court’s orders or the way the superior court addressed his concerns, does not establish that Ingersoll

was acting in good faith.

       Even if Ingersoll had a good faith belief in the concerns he expressed to the superior court,

his refusal to comply with the superior court’s order was not based on a good faith attempt to



                                                 11
No. 50959-8-II


comply with the parenting plan or a good faith belief that he was acting legally. Therefore, the

superior court did not abuse its discretion by finding that Ingersoll acted in bad faith by refusing

to return FMI to Alaska.

        2.       Winters’s Withholding Visitation

        First, Ingersoll argues that the superior court abused its discretion by determining that

Winters did not fail to obey the parenting plan when Winters withheld visitation based the Alaska

OCS’s actions. Ingersoll asserts this was an abuse of discretion because both the superior court

and Winters should have known that the Alaska court orders were void under the UCCJEA. But

Alaska superior courts had the ability to initiate child welfare proceedings based, at least in part,

on Ingersoll’s own allegations to the Alaska OCS. See RCW 26.27.231; AS 25.30.330. Therefore,

the superior court did not abuse its discretion by determining that Winters was unable to comply

with the parenting plan due to OCS’s instructions to Winters and the temporary orders entered by

the Alaska superior court.

        Second, Ingersoll argues that the superior court abused its discretion by finding that

Winters did not intentionally fail to obey the parenting plan in regards to the August video

visitations.    But whether Winters intentionally disobeyed the parenting plan was based on

credibility determinations regarding whether the children were refusing to participate in the video

visits or whether Winters refused to allow the children to participate in the visits. We do not review

credibility determinations. Accordingly, the superior court did not abuse its discretion by finding

Winters did not intentionally fail to comply with the parenting plan regarding the missed August

video visits.




                                                 12
No. 50959-8-II


       Third, Ingersoll argues that the superior court abused its discretion by finding that Ingersoll

brought his motion for contempt without a reasonable basis. Ingersoll’s argument is based entirely

on his assertion that the Alaska proceedings are void, and therefore, there was no justification for

Winters to obey the Alaska court orders. But as explained above, the superior court did not abuse

its discretion by finding that Winters was justified in obeying the Alaska court orders. Therefore,

the superior court did not abuse its discretion by finding Ingersoll brought his contempt motion

without a reasonable basis.

       The superior court did not abuse its discretion by finding that Ingersoll was in contempt

for failing to return FMI to Washington or in finding that Winters was not in contempt for failing

to provide visitation. Therefore, we affirm the superior court’s contempt hearing orders.

B.     UCCJEA PROCEEDINGS

       Ingersoll argues that the superior court failed to provide him with meaningful notice and

opportunity to be heard as required by the UCCJEA.5 Specifically, Ingersoll argues that the

superior court’s email notice to the parties did not adequately inform the parties of the subject of

the hearing, and therefore, the superior court’s opportunity to provide briefing or additional

pleadings was not meaningful because the parties were not aware of the issues that should be

addressed by the pleadings. We agree.

       The UCCJEA’s inconvenient forum provision provides,



5
  Ingersoll references constitutional procedural due process by citing to the procedural due process
requirements established by Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976). However, because we decide that the superior court failed to comply with the statutory
requirements of the UCCJEA, we decline to address any potential constitutional argument raised
by Ingersoll. State v. Tingdale, 117 Wn.2d 595, 599, 817 P.2d 850 (1991) (An appellate court will
not decide a constitutional issue when the case can be decided on other grounds.).


                                                 13
No. 50959-8-II


                (1) A court of this state which has jurisdiction under this chapter to make a
       child custody determination may decline to exercise its jurisdiction at any time if it
       determines that it is an inconvenient forum under the circumstances and that a court
       of another state is a more appropriate forum. The issue of inconvenient forum may
       be raised upon motion of a party, the court’s own motion, or request of another
       court.
                (2) Before determining whether it is an inconvenient forum, a court of this
       state shall consider whether it is appropriate for a court of another state to exercise
       jurisdiction. For this purpose, the court shall allow the parties to submit information
       and shall consider all relevant factors, including:
                (a) Whether domestic violence has occurred and is likely to continue in the
       future and which state could best protect the parties and the child;
                (b) The length of time the child has resided outside this state;
                (c) The distance between the court in this state and the court in the state that
       would assume jurisdiction;
                (d) The relative financial circumstances of the parties;
                (e) Any agreement of the parties as to which state should assume
       jurisdiction;
                (f) The nature and location of the evidence required to resolve the pending
       litigation, including testimony of the child;
                (g) The ability of the court of each state to decide the issue expeditiously
       and the procedures necessary to present the evidence; and
                (h) The familiarity of the court of each state with the facts and issues in the
       pending litigation.

RCW 26.27.261.

       Ingersoll asserts that, in addition to the statutory requirements of RCW 26.27.261, the court

must also comply with the notice requirements for motions under CR 7 before making a

determination regarding relinquishing jurisdiction as an inconvenient forum. Under CR 7(b)(1),

motions “shall state with particularity the grounds therefor, and shall set forth the relief or order

sought.” RCW 26.27.261(1) states that the issue of inconvenient forum is raised by a motion;

therefore, we agree with Ingersoll that CR 7 applies.

       Here, the superior court informed the parties that the UCCJEA hearing would be held on

May 17 and that they had the opportunity to file pleadings. However, given the procedural posture




                                                  14
No. 50959-8-II


of this case, it was unclear what the subject of the hearing would be. The Alaska court had asserted

jurisdiction under the temporary emergency jurisdiction provision of the UCCJEA, RCW

26.27.231. And the Alaska court requested the conference with the Washington court. Based

solely on that information, it is unclear whether (1) Alaska would ask Washington to relinquish

jurisdiction, (2) Alaska and Washington would discuss terms of the temporary emergency

jurisdiction under RCW 26.27.231(d), or (3) Washington would ask Alaska to relinquish

jurisdiction. And it was unclear which court would be making a jurisdictional determination.

Moreover, despite requesting clarification regarding the hearing, the Washington superior court

did not provide Ingersoll with any additional information. And the superior court refused to allow

Ingersoll to state his objections for the record at the hearing.

       Moreover, there were no motions filed to have Washington relinquish jurisdiction as an

inconvenient forum. Although the request came from the Alaska superior court, the request arose

from Ingersoll’s motion to dismiss the Alaska proceedings based on improper exercise of

jurisdiction when Washington continued to have exclusive jurisdiction—it was not based on the

inconvenient forum provision of the UCCJEA. And the responses to Ingersoll’s motion addressed

the exercise of temporary emergency jurisdiction. Therefore, the superior court email stating that

the hearing was based on the Alaska superior court’s request resulting from Ingersoll’s motion to

dismiss cannot be considered adequate to identify the hearing as a motion to consider whether

Washington should relinquish jurisdiction because it is an inconvenient forum.

       The motions filed in the Alaska court suggested that the conference would consider the

requirements of the temporary emergency jurisdiction statutes, which required communication

regarding resolution of the emergency, the safety of the children, and the duration of any temporary



                                                  15
No. 50959-8-II


orders. The consideration of temporary emergency jurisdiction is substantively different from the

consideration of inconvenient forum. Therefore, the parties were not provided an opportunity to

provide information or briefing on the issues determined by the courts. Accordingly, the superior

court failed to comply with the requirements of RCW 26.27.261(2).

       Ingersoll also asserts that the Washington superior court violated RCW 26.27.101(2),

governing communications between the courts. We agree.

       The provision governing communications between courts requires that the parties are either

allowed to participate in the communication or “they must be given the opportunity to present facts

and legal arguments before a decision on jurisdiction is made.” RCW 26.27.101(2). Whether

Ingersoll was able to participate in the communication by merely attending the conference is a

question of statutory interpretation. We review questions of statutory interpretation de novo. State

v. Alvarado, 164 Wn.2d 556, 561, 192 P.3d 345 (2008).

       Our primary purpose in statutory interpretation is to determine and enforce legislative

intent. Id. at 561-62. “Where the plain meaning of statutory language is plain on its face, we must

give effect to that plain meaning as an expression of legislative intent.” Id. at 562. To determine

the statute’s plain meaning, we consider the entire statute in which a provision is found, in addition

to related statutes or other provisions in the same act. Alvarado, 182 Wn.2d at 562. We may use

dictionaries to discern the plain meaning of terms with “well-accepted, ordinary” meanings. Id.

       Participate means “to take part in something . . . [usually] in common with others.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED

1646 (1961). “To take part in” indicates some form of action rather than passive attendance.




                                                 16
No. 50959-8-II


Therefore, a plain language analysis of the statute shows that the legislature intended “participate”

to mean something more than just being permitted to attend the communication.

       Here, although the court allowed the parties the opportunity to submit pleadings, there was

no indication that the Washington court would be considering relinquishing jurisdiction under the

UCCJEA’s inconvenient forum provision. Rather, because the motion to dismiss in Alaska

addressed the requirements for a conference under the temporary emergency jurisdiction

provisions, the parties had no way of knowing that there would be reason to submit information or

legal arguments on the merits of relinquishing jurisdiction under the inconvenient forum provision.

In essence, the parties were provided the opportunity to merely attend the conference between the

Washington and Alaska superior court judges without being permitted to speak or offer

information or legal argument. Therefore, we conclude that the superior court also failed to

comply with the notice requirements under the UCCJEA before making its decision to relinquish

jurisdiction to Alaska.

       We reverse the superior court’s order relinquishing jurisdiction to Alaska and remand for

a hearing on whether Washington is an inconvenient forum. The parties shall be afforded an

opportunity to submit information and provide briefing before a determination on jurisdiction

based on inconvenient forum is made.

                                ATTORNEY FEES ON APPEAL

       Both parties request attorney fees on appeal. Ingersoll requests attorney fees on appeal

under RCW 26.09.160(2)(b), which allows for attorney fees when a party fails to comply with a

parenting plan in bad faith. However, because we affirm the superior court’s finding that Winters

did not act in bad faith, we do not award Ingersoll attorney fees.



                                                 17
No. 50959-8-II


        Winters argues that she is entitled to attorney’s fees under RCW 26.09.160(2) and RAP

18.1, which allows us to award attorney’s fees to a party entitled to attorney’s fees by contract or

statute. Because we affirm the superior court’s orders on contempt, in which Winters was awarded

attorney fees below, we award attorney fees to Winters for addressing Ingersoll’s appeal of the

contempt hearing orders. However, RCW 26.09.160 does not entitle Winters to attorney fees for

the appeal of the superior court’s order relinquishing jurisdiction.

        We affirm the superior court’s orders on contempt, but we reverse the superior court’s

order relinquishing jurisdiction to Alaska. We remand for further proceedings consistent with this

opinion.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      Lee, A.C.J.
 We concur:



 Worswick, J.




 Cruser, J.




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