                                                                          FILED 

                                                                        JUNE 5, 2014 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


In re the Marriage of:                          )
                                                )         No. 31680-7-111
                                                )
KIMBERL Y LAUBACH,                              )
                                                )
                      Respondent,               )
                                                )         UNPUBLISHED OPINION
       and                                      )
                                                )
ARTHUR LAUBACH, III,                            )
                                                )
                      Appellant.                )

       FEARING, J.       This case is one of many illustrating harm to a child when his

divorced parents squabble. Neither parent will change his or her behavior because the

other parent is totally to blame for that harm. Courts are rarely capable of solving the

problem of bickering parents.

       Arthur Laubach appeals the trial court's denial of his motion to hold his former

wife, Kimberly Laubach, in contempt for allegedly violating a parenting plan directing

that he be notified of health care for their son. We affirm the trial court since the trial

court did not abuse its discretion when finding that Kimberly Laubach did not act in bad

faith when failing to comply with the plan.

                                           FACTS

       Arthur and Kimberly Laubach divorced and agreed to a parenting plan for their
No. 31680-7-111
In re Marriage ofLaubach



two children in June 2010. Arthur lives in Colorado; Kimberly and their two children

live in Washington State. As of2010, their daughter, G.L., was five years old and their

son, B.L., was 11.

       After the marriage dissolution, Arthur and Kimberly mediated a new parenting

plan, which the court approved on April 14,2011. In relevant portion, that plan provides:

       Affection: Each parent shall exert every effort to maintain free
              access, or unhampered contact between the children and the
              other parent, so as to foster affection between the children and
              the other parent. Neither parent shall do anything that will
              estrange the children from the other parent, nor shall a parent
              do anything that would tend to injure a child's opinion of the
              other parent, or to impair in any way the natural development
              of the children's love and respect for both parents.

       4.1 	   Day-to-Day Decisions
               Each parent shall make decisions regarding the day-to-day care and
               control of each child while the child is residing with that parent.
               Regardless of the allocation of decision making in this parenting
               plan, either parent may make emergency decisions affecting the
               health or safety of the children.
       4.2 	   Major Decisions
               Major decisions regarding each child shall be made as follows:
               Education .... [X] joint
               Non-emergency health care .... [X] joint
               Religious upbringing [X] petitioner

Clerk's Papers (CP) at 43,45.

       At some point, B.L. began to cut himself as a coping mechanism. B.L. saw a

therapist, who assisted him in improving his relationship with his father and in managing

peer relationships.

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           On March 28, 2012, Kimberly took B.L. to a doctor for a wellness visit. The

    doctor diagnosed B.L. with depression and prescribed the antidepressant Prozac.

    Kimberly did not inform Arthur ofthe visit or prescription for two reasons. First, B.L.

    showed concern about his father knowing of his mental health therapy and his taking

    antidepressants. Kimberly wished to respect her son's privacy. Second, Kimberly did

    not believe that their parenting plan required her to notify Arthur.



I          B.L. stayed with Arthur for a month during the summer in 2012. B.L. arrived at

    his father's home with his medications, including Prozac, but no instructions from his

I   mother to his father concerning the medications. During that time, Arthur learned of the

    March 28,2012 doctor visit and B.L.'s taking of antidepressants. During the visit,


I   Kimberly and B.L. engaged in texts, some of which were negative toward Arthur. On




I   July 21,2012, Kimberly wrote, "I hate you being there," and "two can play this butthole

    game." CP at 3, 5.

                                          PROCEDURE

           On November 29,2012, Arthur moved the court to find Kimberly in contempt,

    alleging (1) Kimberly violated section 4.2 of their parenting plan for non-emergency

    health care when she failed to inform him of the March 28 doctor visit and prescription

    for Prozac and (2) Kimberly violated the section titled "affection" when texting B.L.




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        The trial court heard argument on December 7. The clerk's notes for that hearing

read:

        [Kimberly] shall have sole decision making regarding education and
        medical issues and shall advise [Arthur] 14 days prior to the effective date
        of that decision. [Arthur] shall submit his thoughts in writing within seven
        days to [Kimberly] and she shall give good faith consideration to his
        concerns and communicate to him whether she accepts or denies those
        concerns.

        Court was concerned regarding the parties ability to communicate
        effectively. Court found the parties have demonstrated an inability to
        communicate, the geographic distance made it more difficult, and that there
        had been domestic violence between them in the past. Court [0 ]rdered
        [Arthur] have full access to the medical and education records of the
        children. Court found [B.L.] did have issues with visitation and the parties
        need to positively encourage him to see visitation as positive[.]

CP at 15.

        In its written order, dated December 28, the court found:

              Kimberly Laubach ... intentionally failed to comply with a lawful
              order of the court dated on April 14,2011.

                     [Kimberly] violated the terms of the parenting plan by
                     referencing [Arthur] as a butthole to their son in a text
                     conversation she had with their son. This conversation
                     took place on or about July 21, 2012.

CP at 16-17. The court allowed for Kimberly to purge the contempt by avoiding

reference to Arthur in any derogatory manner to the children for the next six months.

        On January 7, 2013, Arthur moved for reconsideration. In that motion, Arthur

noted that the trial court failed to address the contempt charge regarding non-emergency

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medical care. Arthur also asked the court to reconsider its decision giving Kimberly sole

decision making authority for education and medical issues.

       Kimberly filed a responsive declaration to Arthur's motion for reconsideration on

January 18. There, Kimberly declared:

       [B.L.] is currently refusing to talk to [his mental health counselor] because
       he does not want his dad to read the records of his treatment. [B.L.] needs
       mental health counseling and [Arthur]'s insistence on obtaining his records
       has caused [B.L.] to stop engaging in treatment. I can't make [B.L.] talk to
       [his counselor].

CP at 27. In the declaration, Kimberly clarified her understanding of their parenting plan.

She declared that, during mediation, Arthur led her to believe he wanted notification of

elective surgeries and thus they checked the joint decision making box.

       The trial court denied the motion for reconsideration on March 5. In its letter

ruling, the court wrote:

              Based on the court's review of this information, the court denies
       [Arthur]'s motion for reconsideration. As the court previously ruled,
       [Arthur] has failed to prove that [Kimberly] acted in bad faith by failing to
       notify him of the March 28, 2012 well-child appointment. Further, the
       court finds [Kimberly]'s declaration persuasive regarding her
       understanding of what types of information [Arthur] wished to receive.
       Thus, although [Kimberly] failed to provide information or consult with
       [Arthur] as required by the parenting plan then in effect, her actions were
       not taken in bad faith.

CP at 31.




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                                 LAW AND ANALYSIS

       Arthur contends the trial court erred when it denied his motion to hold Kimberly in

contempt, under RCW 26.09.160, for withholding information ofB.L.'s wellness visit

and prescription for antidepressants. He does not appeal the remedy granted for

Kimberly's contempt citation for demeaning him to B.L.

       This court reviews a trial court's decision in a contempt proceeding for abuse of

discretion. In re Marriage ofJames, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). "A

trial court abuses its discretion by exercising it on untenable grounds or for untenable

reasons." James, 79 Wn. App. at 440.

              A court's decision is manifestly unreasonable if it is outside the
       range of acceptable choices, given the facts and the applicable legal
       standard; it is based on untenable grounds if the factual findings are
       unsupported by the record; it is based on untenable reasons if it is based on
       an incorrect standard or the facts do not meet the requirements of the
       correct standard.

In re Marriage ofLittlefield, 133 Wn.2d 39,47,940 P.2d 1362 (1997). Even when the

record is entirely documentary, the superior court's findings should be given deference

and evaluated to determine if there is substantial evidence to support them. In re

Marriage ofRideout, 150 Wn.2d 337,359-60,349,77 P.3d 1174 (2003). In turn, this

court reviews whether those findings support the trial court's conclusions of law.

Rideout, 150 Wn.2d at 350.

       In relevant portion, RCW 26.09.160 reads:

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No. 31680-7-II1
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      (1) The performance of parental functions and the duty to provide child
      support are distinct responsibilities in the care of a child. If a party fails to
      comply with a provision of a decree or temporary order of injunction, the
      obligation of the other party to make payments for support or maintenance
     or to permit contact with children is not suspended. An attempt by a parent,
      in either the negotiation or the performance of a parenting plan, to
      condition one aspect of the parenting plan upon another, to condition
     payment of child support upon an aspect of the parenting plan, to refuse to
     pay ordered child support, to refuse to perform the duties provided in the
     parenting plan, or to hinder the performance by the other parent of duties
     provided in the parenting plan, shall be deemed bad faith and shall be
     punished by the court by holding the party in contempt of court and by
      awarding to the aggrieved party reasonable attorneys' fees and costs
      incidental in bringing a motion for contempt of court.
               (2)(a) A motion may be filed to initiate a contempt action to coerce a
     parent to comply with an order establishing residential provisions for a
     child. If the court finds there is reasonable cause to believe the parent has
     not complied with the order, the court may issue an order to show cause
     why the relief requested should not be granted.
               (b) If, based on all the facts and circumstances, the court finds after
     hearing that the parent, in bad faith, has not complied with the order
     establishing residential provisions for the child, the court shall find the
     parent in contempt of court. Upon a finding of contempt, the court shall
     order:
               (i) The noncomplying parent to provide the moving party additional
     time with the child. The additional time shall be equal to the time missed·
     with the child, due to the parent's noncompliance;
               (ii) The parent to pay, to the moving party, all court costs and
     reasonable attorneys' fees incurred as a result of the noncompliance, and
     any reasonable expenses incurred in locating or returning a child; and
               (iii) The parent to pay, to the moving party, a civil penalty, not less
     than the sum of one hundred dollars.
               The court may also order the parent to be imprisoned in the county
     jail, if the parent is presently able to comply with the provisions of the
     court-ordered parenting plan and is presently unwilling to comply. The
     parent may be imprisoned until he or she agrees to comply with the order,
     but in no event for more than one hundred eighty days.


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                  (4) For purposes of subsections (1), (2), and (3) of this section, the
           parent shall be deemed to have the present ability to comply with the order
           establishing residential provisions unless he or she establishes otherwise by
           a preponderance of the evidence. The parent shall establish a reasonable
           excuse for failure to comply with the residential provision of a court­
           ordered parenting plan by a preponderance of the evidence.

    (Emphasis added.)

           To find a parent in contempt of court under RCW 26.09.160, the trial court must

    first make a specific finding that the parent acted in bad faith or committed intentional

    misconduct, such as disobeying a prior court order or using custodial time in a manner

    calculated to manipulate the other party into changing a parenting plan. James, 79 Wn.

    App. at 441. A parent who refuses to comply with duties imposed by a parenting plan is

    considered to have acted in bad faith. Rideout, 150 Wn.2d at 349; RCW 26.09.160(1).

    Courts presume that parents have the present ability to comply with parenting plans.

    RCW 26.09.160(4). The burden is on a noncomplying parent to establish by a

    preponderance of the evidence that he or she lacked the ability to comply with the

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

    noncompliance. Rideout, 150 Wn.2d at 352-53; RCW 26.09.160(4).

          Arthur argues that Kimberly's refusal to perform the duties provided in the

    parenting plan, by providing him notice of medical care, is per se bad faith under RCW

    26.09.160(1). He accurately states the law, but misstates the facts. RCW 26.09.160


i
t
    requires that a parent's refusal to comply with a parenting plan be deemed bad faith. In

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No. 3 I 680-7-III
In re Marriage ofLaubach



this case, however, Kimberly did not refuse to comply with their parenting plan. She

misunderstood its scope.

       Arthur next argues that Kimberly acted in bad faith in a manner analogous to

Rideout. In Rideout, Sara Rideout repeatedly failed to deliver her and Christopher

Rideout's daughter for scheduled residential time. When Christopher filed contempt

charges, Sara responded that Christopher's dispute was with his 13-year-old daughter.

The daughter did not wish to visit her father. Sara did not dispute she failed to deliver the

daughter at the designated time and place, but argued that her failure to comply was not

in bad faith. The trial court rejected Sara's deflection of responsibility. The Supreme

Court affirmed a contempt citation, writing:

       that where a child resists court-ordered residential time and where the
       evidence establishes that a parent either contributes to the child's attitude or
       fails to make reasonable efforts to require the child to comply with the
       parenting plan and a court-ordered residential time, such parent may be
       deemed to have acted in "bad faith" for purposes ofRCW 26.09.160(1).

Rideout, 150 Wn.2d at 356-57.

       Arthur remonstrates that, like Sara Rideout, Kimberly misconstrues any conflict as

between him and their son, and has thus contributes to their son's recalcitrance to

communicate with his father. Arthur emphasizes Kimberly's acquiesce to B.L. 's desire

to keep medical information from him and Kimberly's derogatory texts to B.L.

      The trial court expressly found that Kimberly misunderstood the scope of the


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parenting plan. To support this finding, the court pointed to her statement that, "[d]uring

mediation [Arthur] lead me to believe he wanted notification of elective surgeries and

that was why we were checking the joint decision making box." CP at 25-26. Given the

limited evidence in this case and this court's deference to the trial court, the evidence is

sufficient to support the trial court's finding. The finding of fact, in tum, supports the

trial court's conclusion that Kimberly violated the parenting plan, but not in bad faith.

                             ATTORNEY FEES AND COSTS

       Arthur requests attorney fees and costs on appeal under RCW 26.09.l60(2)(b)(ii).

The statute reads, in relevant part:

              (b) If, based on all the facts and circumstances, the court finds after
       hearing that the parent, in bad faith, has not complied with the order
       establishing residential provisions for the child, the court shall find the
       parent in contempt of court. Upon a finding of contempt, the court shall
       order:

              (ii) The parent to pay, to the moving party, all court costs and
       reasonable attorneys' fees incurred as a result of the noncompliance, and
       any reasonable expenses incurred in locating or returning a child.

Since we rule the trial court did not abuse its discretion when denying the contempt

charge, attorney fees are not available to Arthur.

                                       CONCLUSION

       We affirm the trial court's refusal to hold Kimberly Laubach in contempt for

withholding medical care information from Arthur Laubach.


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      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.




WE CONCUR: 





                                                  Siddoway, C.J.




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