                                                                                                           FILED
                                                                                                     COUR i OF APPEALS
                                                                                                         DIVISION LI
                                                                                                    2015 MAR 24
                                                                                                                AM 8: 34
    IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                                                                                 INCTOPN
                                              DIVISION II                                           8Y


 In the Matter of the Marriage of                                                No. 45921 -3 -II


 APRIL McMILLIN,
                                Appellant,


        v.

                                                                       UNPUBLISHED OPINION
 AUSTIN McMILLIN,


                                Respondent.




       MAxA, J. —    April Adams (formerly McMillin) appeals the trial court' s finding of

contempt for her failure to comply with a court order relating to her residential time with her

daughter, LM. The trial court found Adams in contempt after she failed to transfer LM at the


end of her residential time. Adams argues that the trial court erred by failing to include in its

contempt order a necessary finding that she acted in bad faith. She also argues that it was

impossible for her to comply with the terms of the visitation order because nobody appeared to

pick up LM at the scheduled time. We hold that ( 1) the trial court properly supported its

contempt order with the necessary finding of bad faith, and ( 2) Adams did not show that it was

impossible for her to comply with the terms of the court order regarding residential time.

Accordingly, we affirm the contempt order.

                                                   FACTS


       Adams and her former husband, Austin McMillin, were involved in a protracted dispute

over modification of   the parenting   plan   for their   children,   LM   and   RM. On December 6, 2013,
45921 -3 -II



the trial court issued an order temporarily modifying LM' s residential schedule to allow Adams

residential time on Saturdays from 10: 00 AM to 5: 00 PM.


        The following day was a Saturday. McMillin was out of town, but he arranged for a

neighbor and family friend, Beth Barker, to facilitate LM' s transfer and then watch her until he

returned on Sunday. Barker dropped LM off with Adams on Saturday morning without incident.

But when Adams arrived at the transfer location with LM at 5: 00 PM, Barker was not present.

Adams waited for a while, then returned home with LM. Due to miscommunication between


McMillin and McMillin' s attorney, McMillin had told Barker that the transfer would occur at

7: 00 PM. Barker arrived at that time to find neither Adams nor LM at the transfer location.

        Barker notified McMillin that Adams was not at the transfer location, and both McMillin


and Barker subsequently contacted Adams to try to accomplish LM' s transfer. Adams was

unwilling to transfer LM Saturday night, so Barker offered to facilitate the transfer on Sunday.

But Adams did not contact Barker again. McMillin and Adams exchanged text messages in

which McMillin demanded Adams transfer LM to Barker and Adams refused. Adams ultimately

kept LM on Sunday and drove her to school Monday morning.

        McMillin moved the trial court to hold Adams in contempt for failing to return LM. The

trial court temporarily modified LM' s residential schedule again, suspending visitation with.

Adams until a later review hearing. At the review hearing, the trial court found Adams in

contempt for failing to transfer LM to Barker on Sunday despite having the opportunity to do so.

The trial court' s written contempt order included the following findings and conclusions:

        This   order was violated ...   by not returning [LM] Sunday to Father (Dec. 8, 2013).

        April Adams had the ability to comply with the order as follows: she was aware
        Beth Barker was available to transfer [ LM] on Sunday Dec. 8, 2013.

                                                     2
45921 -3 -II




         April [ Adams] has not complied with the residential ( visitation) provisions of the
         parenting plan and had the ability to comply with the parenting plan, and is
         currently unwilling to comply. The noncompliance with the residential provisions
         was in bad faith.


Clerk' s Papers ( CP) at 69, 71.


         The trial court consequently held Adams in contempt and imposed sanctions under RCW

26. 09. 160. The trial court also modified LM' s residential schedule again to give Adams

visitation    from 10: 00 AM to 5: 00       PM   every   other   Saturday   after   February   1.    The contempt order


included a clause explaining that Adams could purge the contempt and reinstated this modified

residential schedule.



         Adams appeals the contempt order.


                                                         ANALYSIS


         A.          CONTEMPT ORDER


         Adams       challenges   the trial   court' s contempt order on     two     grounds: (     1) the trial court did not


find or conclude that she acted in bad faith, and (2) under the circumstances it was impossible for her


to comply with the terms of the order. We reject both arguments.

         1.     Legal Principles


         RCW 26.09. 160 provides that failing to comply with a parenting plan is grounds for contempt.

To support a contempt order for noncompliance with a parenting plan, a trial court must conclude that

the   contemnor acted        in bad faith   or committed    intentional   misconduct.      RCW 26. 09. 160( 2)( b); In re


Marriage      ofJames,      79 Wn. App. 436, 441, 903 P. 2d 470 ( 1995).            We will uphold any such conclusion

if it is adequately supported by factual findings, and those findings are supported by substantial

evidence.      In   re   Marriage of Rideout, 150 Wn. 2d 337, 351 - 52, 77 P. 3d 1174 ( 2003).                  A finding is


                                                                 3
45921 -3 -II



supported by substantial evidence when the evidence before the court would be sufficient to persuade

a   fair -minded,   rational person        that the fact found is true.   In re Marriage of Chandola, 180 Wn.2d

632, 642, 327 P. 3d 644 ( 2014).


          Under RCW 26. 09. 160, a trial court has discretion to punish parties for contempt, and we


review the trial court' s contempt order for an abuse of that discretion. James, 79 Wn. App. at 439-

40. A court abuses its discretion when it makes a decision that is manifestly unreasonable or based

on untenable grounds. Chandola, 180 Wn.2d at 642.


          2.     Conclusion of Bad Faith


          Adams argues that the trial court did not specifically find or conclude that she acted in bad

faith,   and   therefore      did   not   satisfy the statutory   requirements   for   holding   her in   contempt.   We


disagree.


          Adams' s argument misstates the record. The trial court did find that Adams had engaged in


misconduct and expressly concluded that her misconduct was in bad faith. In the written order, the

trial court stated,


           Adams] has not complied with the residential (visitation) provisions of the parenting
          plan and had the ability to comply with the parenting plan, and is currently unwilling
          to comply. The noncompliance with the residential provisions was in badfaith.

CP 71 (   emphasis added).           We therefore reject Adams' s argument that the trial court did not enter the


necessary conclusion of bad faith.

          Adams argues in her reply brief that even if the trial court concluded that she had acted in bad

faith, it did not specifically identify the conduct constituting bad faith or sufficiently support its

conclusion with other findings. However, the trial court specifically found that Adams violated the

parenting      plan "   by   not   returning [ LM] to Mather ( Dec. 8, 2013)," and that Adams " was aware Beth




                                                                  4
45921 -3 -I1



Barker   was available     to transfer [ LM]    on   Sunday    Dec. 8, 2013."      CP    at   69.   The trial court clearly

based its conclusion that Adams acted in bad faith on these findings showing that Adams had not

complied with its earlier order and had been unwilling to comply despite being able to do so. Because

RCW 26.09. 160( 1) requires a trial court to deem such noncompliance bad faith, these findings provide

sufficient support for the trial court' s conclusion that Adams acted in bad faith.


         Further, the trial court' s findings clearly were supported by substantial evidence. By affidavit,

both McMillin and Barker stated that Adams did not transfer LM at any point on December 7 or 8,

despite multiple contacts from each of them. The affidavits also showed that Adams was aware that


Barker   was available and      willing to facilitate the transfer.       Text message records corroborated the


affidavits and indicated that Adams acted evasively and without regard for the trial court' s order. The

trial court found McMillin' s and Barker' s affidavits credible, noting that Barker' s affidavit was

particularly persuasive because she was not a directly interested party. The evidence before the trial

court was sufficient to persuade a fair -minded, rational person that Adams did not transfer LM on

December 7 or 8, and that Adams was aware that Barker was available to facilitate the transfer.

         Adams also argues that the trial court' s findings did not establish that she violated the


parenting plan at all if the terms of its residential time order are strictly construed. According to this

argument, the order required Adams to transfer LM to McMillin directly but not to transfer LM to

any third -party agent designated by McMillin.

         The order stated that the " current residential schedule shall remain with one modification.


Mother    shall   have   residential   time   with [ LM]     from 10   am -   5   pm   every   Saturday.     Transportation


provided   by delivering      parent &    pickup     shall   be University Place       City    Hall."   CP   at   2.   Because


McMillin    was    LM' s   residential parent,   the order clearly     allowed     Adams       visitation   only from 10: 00
45921 -3 -II



AM to     5: 00   PM on    Saturdays.         The   order     required the "   delivering     parent"   to provide for LM' s


transportation to University Place City Hall, but it did not require each parent to be personally present

for the   transfer.    In fact, the   order   further   specified   that "[ t] he parents shall not have contact with one


another at     these   exchanges."     CP at 2. Because the order allowed room for third -party assistance with

the transfers, we reject Adams' s argument.


          3.      Impossibility Defense

          Adams argues that McMillin made it impossible for her to comply with the terms of the

visitation order, and that this should have provided a complete defense to the contempt charge. We

disagree.


          Impossibility provides a complete defense to contempt based on violation of a court order.

Britannia Holdings Ltd. v. Greer, 127 Wn.                     App. 926, 933,    113 P. 3d 1041 ( 2005).        To establish the


defense, the contempt respondent has the burden of proving inability to comply with the order.

Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P. 2d 725 ( 1995).


          Adams implies that she met this burden by showing that she attempted to transfer LM at 5: 00

PM and thereafter was unable to transfer LM directly to McMillin because he was out of town. But,

as explained above,        the   visitation order       did   not require   both   parents   to be   present at   transfers.   That


order required Adams to transfer LM to Barker once Adams became aware that Barker was

McMillin' s designated agent and was available to facilitate the transfer. Adams failed to prove that

she was unable         to transfer LM to Barker           on   Saturday     evening   or   any time   on   Sunday. In fact, the

evidence before the trial court showed that she was able to transfer LM on Sunday. The trial court

therefore did not err by finding that Adams violated the parenting plan.




                                                                   6
45921 -3 - II



         Because the trial court expressly concluded in its written contempt order that Adams violated

the terms of the parenting plan in bad faith, and because that conclusion was based on sufficient

findings supported by substantial evidence, we hold that the trial court clearly complied with RCW

26. 09. 160 and affirm the contempt order.


B.       ATTORNEY FEES


         McMillin   requests reasonable   attorney fees   on appeal.   Under RCW 26. 09. 160( 2)( b)( ii),   a




party is entitled to an award of attorney fees on appeal if it successfully defends a contempt order.

Rideout, 150 Wn.2d     at   359.   Because we affirm the contempt order McMillin defends, we award


McMillin reasonable attorney fees on appeal.'

         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.




We concur:




                    4c
                     ,.
Fr OR f N,
        ; A. C.J.




1 McMillin also requests attorney fees under RAP 18. 9( a) because Adams' s appeal was
frivolous. We do not address this issue because we award McMillin reasonable attorney fees
under RCW 26. 09. 160( 2)( b)( ii).

                                                     7
