                                                                         FILED
                                                                      AUGUST 29, 2019
                                                                 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 the Matter of the Marriage of,             )
                                              )         No. 35292-7-III
LORI VAN DE GRAAF,                            )         (Consol. with Nos. 35499-7-III,
                                              )         35839-9-III, & 36283-3-III)
                      Respondent,             )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
ROD D. VAN DE GRAAF,                          )
                                              )
                      Appellant.              )

       KORSMO, J. — This is Van de Graaf IV. See In re Marriage of Van de Graaf, no.

35133-5-III (Van de Graaf I), for details. These four consolidated cases involved in this

appeal generally revolve around contempt and modification rulings stemming from the

dissolution decree at issue in the first appeal. We affirm the trial court and award

respondent Lori Van de Graaf (Lori) her attorney fees for responding to these four

consolidated cases.

                                PROCEDURAL HISTORY

       As stated in previous opinions, the underlying facts are known to the parties and

will not be recited here, although interested persons can find some of the information in

our Van de Graaf I opinion. After five years of litigation, the trial court entered a decree
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


of dissolution that is the primary topic of Van de Graaf I. Aspects of the decree that

figure into this appeal include the trial court’s directives that appellant Rod Van de Graaf

(Rod) pay his former wife $6,000 per month in maintenance, contribute to the college

expenses of their younger son, and make a transfer payment of approximately $1.17

million to Lori in order to equalize the property distribution. Rod also was awarded the

family home.

       Rod appealed the decree (Van de Graaf I) in March 2017. He thereafter initially

declined to make any of the noted payments, eventually claiming an inability to pay

despite receiving several million dollars in assets under the decree. Superior court

commissioner Elisabeth Tutsch ordered in June 2017, that Rod advance “suit money” to

Lori in light of his failure to pay her while funding extensive post-decree litigation in the

trial and appellate courts.1

       The failure to make maintenance and college support payments led Lori to seek

enforcement of the decree by repeated motions for contempt. In response to the first

motion, Rod moved to modify the maintenance award five weeks after the decree was

filed.2 In support of his motion to modify the spousal maintenance award, Rod argued

that his monthly income had been reduced to $7,800 from the $17,000 monthly average



       1
         We upheld the suit money awards in Van de Graaf II.
       2
         He also sought to vacate the decree due to concerns about the ownership of the
life insurance policies awarded to him. We rejected that argument in Van de Graaf I.

                                              2
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


used by the court in setting the award.3 The dissolution trial judge, the Honorable

Michael McCarthy, found Rod in contempt and issued a bench warrant for his arrest on

April 14, 2017, due to “willful failure to pay spousal maintenance” since the previous

November. Judge McCarthy also denied the motion to modify. Clerk’s Papers (CP) (no.

35133-5-III) at 963-965. The order also indicated that Rod could purge the contempt by

complying with the decree for six consecutive months. The warrant was quashed three

days later after Rod paid the arrears.

       Commissioner Tutsch found Rod in contempt again on May 31, 2017, due to

failure to pay that month’s maintenance. Rod purged that contempt order by making the

payment, advising the court that he had to borrow money to do so.

       Lori sought suit money from Rod in June 2017. In late August, Commissioner

Tutsch awarded Lori $30,000 of the requested $65,000 in suit money and also found Rod

in contempt for failing to make the July and August maintenance payments. Rod failed

to pay any of the suit money, leading to a contempt motion in November. Rod made the

same financial argument to the commissioner that he had made to Judge McCarthy in the

spring—his income had been reduced to $7,800 per month. He alleged the $6,000


       3
          The financial arrangements are discussed more fully in Van de Graaf I. Rod and
his siblings operated a business, Midvale, that managed their parents’ cattle business.
The reduction in income was attributed to a decline in cattle prices, but, as we discussed
in Van de Graaf I, a significant asset of Midvale’s was diverted to pay for Midvale’s
purchase of the parents’ business operations as part of the senior Van de Graafs’ estate
planning.

                                            3
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


monthly maintenance payment to Lori left him insufficient income to pay other expenses,

although he had been able to borrow funds to pay $38,000 to Lori in order to bring his

maintenance arrearages up to date. On December 7, 2017, Commissioner Tutsch found

Rod4 in contempt of court. Rod was ordered to make the $30,000 payment by December

22 and was also assessed $1,000 in costs. He did not appeal that ruling.

      He paid Lori’s attorneys $10,000 on December 22 that he borrowed from his

sister. He also sought to supersede the judgments against him by using the former family

home as collateral.5 Meanwhile, Lori conducted a debtor’s examination as part of

supplemental proceedings in January 2018. Her renewed motion for contempt was heard

by Commissioner Tutsch that same month.6 The commissioner rejected Rod’s poverty

claim “on the same basis that Judge McCarthy entered the decree,” concluding that “he

has contemptuously, willfully disregarded the orders that had been entered.” Report of

Proceedings (RP) (no. 351335) at 1176. “I don’t accept that he is unable to pay those

orders.” Id.




      4
         Rod’s appellate attorney was found in contempt in August 2018, due to a billing
records discovery dispute and was ordered to pay $750 to Lori’s trial attorney to cover
expenses related to a deposition. In Van de Graaf I, we denied Lori’s request to have
Rod’s attorneys pay the attorney fees owed her counsel.
       5
         A supersedeas bond subsequently was approved in February 2018.
       6
         Our record shows that financial information disclosed during the debtor’s
examination was filed in superior court until the following month, making it unlikely that
any of it was before the court during the January contempt hearing.

                                            4
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


       On January 22, 2018, the commissioner ordered Rod to pay the remaining $20,000

and suspended a five day jail sentence on condition that payment be made by January 31,

2018. The court also approved use of the former family home as alternate security

conditioned on the filing of a supersedeas bond. The contempt order begat an

unsuccessful series of “emergency” motions to this court and the Washington Supreme

Court as Rod sought to stay the jail sentence. The appellate court commissioners also

concluded that Rod had failed to prove his claim of inability to pay. During this period,

Lori’s attorneys began seeking information concerning the amount spent by Rod for his

appellate attorneys and other post-decree litigation.

       Additional contempt orders were entered by Commissioner Tutsch on March 22

and July 18, 2018, with the commissioner reiterating her findings that she found the claim

of inability to pay unproved. Lori demonstrated that by June 8, 2018, Rod’s appellate

attorneys had been paid the sum of $230,438.66.7 Lori was awarded an additional

$80,000 in suit money. In response to Lori’s motions to enforce the contempt rulings,

Commissioner Tutsch ordered Rod to begin serving the previously suspended five day

jail sanction. He did so beginning July 27, 2018.

       Rod’s appeal from the April 14, 2017 contempt and modification orders was

assigned cause no. 35292-7-III. The January 22, 2018 jail sanction order was separately


       7
        See Appendices A and B to Lori’s Reply to Motion to Dismiss filed under cause
no. 35133-5-III on October 15, 2018.

                                             5
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


appealed and assigned cause no. 35839-9-III. He also appealed from Judge McCarthy’s

July 10, 2018 order denying revision of Commissioner Tutsch’s May 31 contempt order.

That appeal was assigned no. 35499-7-IIII. Rod also appealed the July 18, 2018

incarceration order. That matter was assigned cause no. 36283-3-III.

       After originally being consolidated in different manners, the four noted files were

reconsolidated under 35292-7-III. The panel that heard the first three Van de Graaf cases

considered the consolidated Van de Graaf IV appeals, along with issues reserved by the

first case, on the court’s August 12, 2019 nonargument docket.

                                       ANALYSIS

       This appeal addresses the 2017 modification ruling that was reserved from Van de

Graaf I, as well as the various contempt rulings recited above. We initially note

standards of review common to both issues. We will then turn to the modification ruling

before considering Rod’s arguments that he lacked the ability to pay and that jail was an

improper punitive sanction rather than a permissible coercive sanction. Finally, we

consider Lori’s request for attorney fees on appeal.

       Common Matters

       After noting some standards governing our review of this case, we briefly turn to

Lori’s motion to dismiss these appeals for mootness.

       The overriding issue in this appeal is a factual one. Accordingly, consideration of

the rules governing review of factual findings and credibility determinations is in order.

                                             6
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


Those rules can be clearly stated: appellate courts defer to the trial court’s credibility

determinations and do not reweigh evidence even if reviewing courts would have

resolved conflicting evidence differently. Thorndike v. Hesperian Orchards, Inc., 54

Wn.2d 570, 575, 343 P.2d 183 (1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn.

App. 710, 717, 225 P.3d 266 (2009). Stated another way, an appellate court is not in a

position to find persuasive evidence that the trier of fact found unpersuasive. Quinn, 153

Wn. App. at 717.8

       This court reviews a trial court’s decision following a bench trial to determine

whether substantial evidence supports any challenged findings and whether the findings

support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318 (2009).

“Substantial evidence” is sufficient evidence to persuade a fair-minded person of the truth

of the declared premise. Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing,

Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000). In determining the sufficiency of

evidence, an appellate court need only consider evidence favorable to the prevailing

party. Bland v. Mentor, 63 Wn.2d 150, 155, 385 P.2d 727 (1963). Conclusions of law

are reviewed de novo. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).



       8
         These standards acknowledge that the written word does not always faithfully
convey the import of spoken language, nor do words alone reflect the speaker’s true
meaning. “Fair speech may hide a foul heart.” J.R.R. Tolkien, The Two Towers, 360
(Ballantine Books 1972) (1955). Whether fair words reflect a fair heart, let alone the
truth of the assertion, is a matter on which we must defer to the trial judge.

                                               7
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


       Appellate courts accord trial courts deference in a number of areas, including, as

noted above, the weight to be given to evidence. Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971). In a bench trial, judges are presumed to follow

the law and to consider evidence solely for proper purposes. State v. Adams, 91 Wn.2d

86, 93, 586 P.2d 1168 (1978); State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970);

State v. Bell, 59 Wn.2d 338, 360, 368 P.2d 177 (1962).

       Lori argues that this appeal should be dismissed as moot, arguing that Rod’s

inability to pay argument has been rejected on multiple occasions by both this court and

the Washington Supreme Court and that no effective relief could be granted Rod since he

has served his five day jail sanction.9 The first of those arguments addresses either issue

or claim preclusion, something that does not exist in the absence of a final judgment. See

generally, Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in

Washington, 60 WASH. L. REV. 805 (1985). Whether facts support interlocutory review

is a totally different question than whether the evidence at trial supported the factual

determination. Her first argument is unpersuasive. The second might technically be true,

but the earlier orders of contempt still have meaning and, in light of the behavior to date,

the trial court would benefit from confirmation of its ability to order incarceration under


       9
        Her related motion to dismiss all of the appeals due to intransigence and lack of
diligence in prosecuting them was denied in Van de Graaf I.

                                              8
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


these circumstances. Accordingly, we deny the motion and now turn to the issues

presented by the appeal.

       Modification

       Rod’s appeal of the denial of his motion for modification of the maintenance

obligation was deferred from Van de Graaf I to this case, primarily because the

maintenance issue led to the initial contempt rulings. We conclude that the trial court did

not abuse its discretion.

       In accordance with RCW 26.09.170(1), maintenance may only be modified upon a

showing of “a substantial change in circumstances that the parties did not contemplate at

the time of the dissolution decree.” In re Marriage of Spreen, 107 Wn. App. 341, 346, 28

P.3d 769 (2001). “The phrase ‘change in circumstances’ refers to the financial ability of

the obligor spouse to pay vis-à-vis the necessities of the other spouse.” Id. (quoting In re

Marriage of Ochsner, 47 Wn. App. 520, 524, 736 P.2d 292 (1987)). Whether

modification should be granted is reviewed for abuse of discretion. In re Marriage of

Drlik, 121 Wn. App. 269, 274, 87 P.3d 1192 (2004).

       Here, the trial court did not grant the petition for modification because it was not

convinced that there had been a change in circumstances.10 The trial court originally had

determined that Rod’s monthly income was $17,000 and ordered that he pay $6,000 to


       10
        Accordingly, we need not consider whether Rod established the other
requirements for modifying his maintenance obligation.

                                             9
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


Lori every month as spousal maintenance. We upheld that award in Van de Graaf I.

Only five weeks after the trial court’s oral ruling was committed to paper, Rod sought to

modify based on an uncontemplated change in circumstances—the reduction of his

income to $7,800 per month after he and his siblings eliminated their monthly “equity

draws” from Midvale.11

       As we noted previously, this court cannot find persuasive evidence that the trial

court determined was unpersuasive. Quinn, 153 Wn. App. at 717. That simple

proposition controls our analysis just as it undermines Rod’s. The trial court did not

believe the income was reduced. We cannot reweigh Rod’s evidence and come to a

different conclusion.

       That recognition is sufficient to resolve this issue (and the next one), but we also

note that the evidence amply backs the trial court. The reduction in income appears to be

a voluntary decision resulting from the diversion of the manure asset and the desire to

fund the senior Van de Graafs’ estate plan. The voluntary choice to fund other projects is

not a significant and unanticipated change in circumstances.




       11
         Although his initial request was poorly supported, Rod later marshalled
additional evidence in support of his argument during the contempt proceedings. Since
we must address his more complete arguments with respect to the contempt contentions,
we consider that same evidence at this time rather than limit Rod to his initial showing.

                                             10
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


       In addition, the decision to spend12 what now is likely more than a quarter million

dollars to appeal while initially claiming inability to pay any obligations under the decree

and then refusing to even advance the remaining $20,000 of the original suit money

award supports the view that the alleged inability to pay is a choice rather than

impecunity. This view is also consistent with the intransigent behavior demonstrated by

Rod throughout this litigation. He has acted to make the process as financially difficult

for Lori as possible by driving up expenses and limiting her income.

       Understandably, the trial court concluded that the income reduction was voluntary

rather than unanticipated. This, also, was a very tenable basis for denying the motion to

modify the support obligation. The court did not err.

       Inability to Pay

       Rod challenges the court’s contempt findings on the basis that he lacked the

present ability to pay. His argument fails, largely for the reasons just noted.

       Contempt of court is the intentional disobedience of a lawful court order. In re

Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995) (citing RCW 7.21.010(1)(b)).

In a dissolution proceeding, the court has the authority to enforce its decree and orders in

a contempt proceeding. In re Marriage of Matthews, 70 Wn. App. 116, 126, 853 P.2d



       12
          If he genuinely is using borrowed funds for the appeal, that fact only compounds
his sins. He is using a loan for a discretionary appeal instead of complying with
mandatory court orders.

                                             11
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


462 (1993).13 Inability to comply with the court order is a defense if the person is unable

to comply through no fault of his own. Britannia Holdings Ltd. v. Greer, 127 Wn. App.

926, 933-934, 113 P.3d 1041 (2005). A party resisting a finding of civil contempt bears

the burden of production as well as the burden of persuasion regarding any claimed

inability to comply with the court’s order. Moreman v. Butcher, 126 Wn.2d 36, 40, 891

P.2d 725 (1995). When the civil contempt involves payment of a specific sum of money,

the court must find that the party has control of sufficient assets to comply with the order,

although the court need not identify a specific funding source. Britannia Holdings, 127

Wn. App. at 934. A finding of contempt is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of

Eklund, 143 Wn. App. 207, 212, 177 P.3d 189 (2008).

       Rod argues that the court erred in two respects: (1) it relied on the financial

information from the time of the dissolution rather than his present reality, and (2) it

wrongly considered his family’s ability to support him as a source of payment. Neither

error existed.

       Rod’s first argument unnecessarily focuses on his present income instead of his

present ability to pay. The decree awarded him roughly $3.9 million in assets,14



       13
          Child support and visitation issues are subject to RCW 26.09.160.
       14
           Since Rod had not complied with the requirement that he transfer $1.17 million
to Lori, the entire property award is properly considered in adjudging his ability to pay.

                                             12
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


including the sole income-producing asset, Midvale. Even if the court had accepted

Rod’s claim that his income had been reduced to $7,800 a month, it was not required to

ignore the rest of his financial holdings. In considering ability to pay, the trial judge

knew that Rod held assets worth nearly $4 million, was making at least $93,600 per year,

had practically no expenses, and was spending tens of thousands of dollars to litigate the

case. Those were the facts governing nearly each and every one of the contempt hearings

at issue here.15 Any trial judge could find present ability to pay the initial suit money

award or the monthly support obligations that were the subjects of the numerous

contempt hearings.

       There was no error in finding a present ability to pay. For these reasons, and those

discussed previously, Rod’s defense of inability to pay was also unavailing. Thus, the

first challenge fails.

       The second challenge is largely based on an ancient case that is neither legally nor

factually apropos, Holcomb v. Holcomb, 53 Wash. 611, 102 P. 653 (1909). Although

Rod spends a great deal of time arguing Holcomb, we need not spend much time with it.

Holcomb comes from a time when the appellate courts exercised de novo consideration

of the facts, something no longer done. Thorndike, 54 Wn.2d at 575. Holcomb is no



       15
          The house was not encumbered by the supersedeas bond until February 2018,
after the initial contempt orders. Rod’s remaining assets, including the $2 million interest
in Midvale, were never encumbered.

                                              13
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


longer good law on the topic of appellate court reweighing of factual matters. Moreover,

the rule of law Rod would draw from that case—that courts cannot consider borrowing

capacity—did not long exist, if Holcomb ever even stood for that proposition. See Croft

v. Croft, 77 Wash. 620, 624, 138 P. 6 (1914) (loan received, but not used toward

dissolution decree obligations, considered evidence of ability to pay); accord Hubbard v.

Hubbard, 130 Wash. 593, 228 P. 692 (1924) (court faulted father in contempt action for

making only one attempt to borrow funds to pay decree obligations).

       The trial court could have considered Rod’s ability to obtain loans to pay his

obligations, whether that money came from family or commercial lenders. To the extent

it was even considered here, however, it was in the context of Rod choosing to spend

money he supposedly did not have on something that he was not required to do. If he

could not afford the entire costs of scorched earth litigation, he should not have lit the

first match.

       The trial court had tenable bases on which to conclude Rod had the ability to pay

each of the various contempt orders it entered. There was no abuse of discretion.

       Incarceration

       Rod also challenges the court’s imposition of a five day jail sanction, arguing that

it was punitive rather than coercive in nature, and therefore improper. We disagree.

       The primary thrust of Rod’s argument is one that we have already rejected—that

the court did not consider only his ability to pay, but included that of his family members

                                             14
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


as well. Noting the fact that Rod’s family would pay the bills when push came to shove

is not the same thing as looking to the family’s ability to pay. The record amply supports

the conclusion that Rod had the ability to pay.

       Moreover, the contempt order truly was coercive rather than punitive. Remedial

sanctions are authorized by RCW 7.21.030, also referred to as “civil contempt.” In re

Det. of Young, 163 Wn.2d 684, 693 n.2, 185 P.3d 1180 (2008). A “remedial sanction” is

one which 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).

       RCW 7.21.030(2), in relevant part, outlines the possible remedial sanctions

available for contempt:

       If the court finds that the person has failed or refused to perform an act that
       is yet within the person’s power to perform, the court may find the person
       in contempt of court and impose one or more of the following remedial
       sanctions:
               (a) Imprisonment if the contempt of court is of a type defined in
       RCW 7.21.010(1)(b) through (d). The imprisonment may extend only so
       long as it serves a coercive purpose.
               (b) A forfeiture not to exceed two thousand dollars for each day the
       contempt of court continues.
               (c) An order designed to ensure compliance with a prior order of the
       court.

       Punitive sanctions are authorized by RCW 7.21.040, also known as “criminal

contempt.” Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 105, 52 P.3d 485

(2002). “‘Punitive sanction’ means a sanction imposed to punish a past contempt of

                                             15
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


court for the purpose of upholding the authority of the court.” RCW 7.21.010(2). If a

court seeks to impose punitive sanctions, a prosecutor must file a complaint or

information and certain other procedures must be followed that are generally consistent

with a criminal case. RCW 7.21.040(2).

       [A] sanction is punitive if there is a determinate sentence and no
       opportunity to “purge” the contempt. . . . [I]t is remedial where it is
       indeterminate and the contemnor is released upon complying with the
       court’s order. A punitive sanction generally is imposed to vindicate the
       court’s authority, while a remedial sanction typically benefits another party.

Rhinevault v. Rhinevault, 91 Wn. App. 688, 694, 959 P.2d 687 (1998) (internal citations

omitted).

       Noting the fixed nature of the penalty and the lack of protections required for

criminal contempt, Rod argues that the court erred in imposing the jail sanction. Because

the incarceration was not for a past offense, it was not criminal in nature.

       A critical factor in distinguishing between civil and criminal contempt is the

triggering mechanism for the sanction. If the purpose of the sanction is to force a person

to do something, it is coercive and hence “remedial.” In re Pers. Restraint of King, 110

Wn.2d 793, 799-800, 756 P.2d 1303 (1988). Where a sanction is imposed for past

conduct, it typically is punitive. Id. A civil sanction “is conditional and indeterminate,

i.e., where the contemnor carries the keys of the prison door in his own pocket and can let

himself out by simply obeying the court order.” Id.



                                             16
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


       Here, Rod was given plenty of time to pay up. The court repeatedly considered

his argument that diminished income left him without ability to afford his obligations, but

was, in each instance, unconvinced and unmoved. Having determined there was an

ability to pay, the court imposed a sanction that could be avoided by complying with the

existing order. Since Rod had the opportunity to purge the contempt, it was civil in

nature. Rhinevault, 91 Wn. App. at 694.

       The court did not erroneously impose a criminal contempt sanction in place of a

civil contempt sanction. There was no abuse of the court’s considerable discretion in

ascertaining Rod’s ability to pay.

       Attorney Fees

       Lastly, we take up Lori’s request that attorney fees be imposed due to Rod’s

intransigence. We granted a similar request in the first two Van de Graaf appeals, but

denied her request in the third case. We also grant the request here.

       There is little need to recite the bases for our ruling since we have done that in the

first two cases. Having affirmed the trial court’s determination that Rod was willfully

refusing to pay his obligations, it necessarily follows that these appeals further

demonstrate the intransigence previously found.16 In light of the trial court’s factual


       16
         We are not finding the appeals to be frivolous. Although a very weak argument,
Rod at least could assert that he was the victim of a financial downturn and could no
longer afford the appeal he had put in motion. We also need not reach the issue of
whether attorney fees should be imposed under the contempt statute, RCW 7.21.030(3).

                                             17
No. 35292-7-III, 35499-7-III, 35839-9-III, 36283-3-III)
In re Marriage of Van de Graaf


findings, these appeals are nothing more than Rod's latest attempts to avoid meeting his

obligations to his former wife.

       We grant Lori her reasonable attorney fees for the briefing and motions filed under

these four cause numbers, subject to her timely compliance with RAP 18.1.

      Affirmed.

      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:



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                                           18
